Trial / Charles Taylor

by Charles C. Jalloh

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

Dear readers – The article below is written by Professor Charles C. Jalloh at the University of Pittsburgh School of Law. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

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), Alternate Judge El Hadj Malick Sow controversially proceeded to issue his own “dissenting opinion.”

The way in which Trial Chamber II reacted to Sow’s decision to make a public statement on Taylor’s trial, the exclusion of Sow’s statement from the official transcript of the hearing and recent information suggesting irregularities in the SCSL discipline process all underscore the need for greater transparency.

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 Sow’s allegation that there were no (serious) deliberations by the three judges who convicted Taylor and sentenced him to 50 years imprisonment. Such a commission could also determine the extent to which, if any, Taylor’s fundamental right to a fair trial under Article 17 of the Statute of the SCSL was impacted. The proposal for an ad hoc commission would demystify what happened during deliberations and can run concurrent with Taylor’s appeal. It, therefore, would 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 Sow to issue a “dissenting opinion” under the UN-Sierra Leone Agreement, 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. Consequently, I argued that as a matter of both tribunal law and practice, Sow was not authorized to give a separate opinion, whether concurring or dissenting, on the outcome in the Taylor case. Otherwise, it would 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 it follows that 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 in the Alternate Judge Sow affair. The new information seems fundamental because, for one thing, the allegations that Sow 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 that important trial and the SCSL itself.

Taking up the task of determining the veracity of Sow’s allegation is one way the tribunal could reassure the accused, the victims, and the 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 “black box” of 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” stems from two factors. Firstly, the unfortunate circumstances under which Sow made his statement. Secondly, the lack of an authoritative record of what he actually said. Taken together, the public might be left with the wrong perception that the SCSL 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 must be 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 Sow started to read from a prepared statement on Taylor verdict day. The other three Trial Chamber II judges (Lussick, 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, Presiding Judge Lussick adjourned the hearing, all three judges rose and everyone seemed to be ready to depart the courtroom when Sow 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 a colleague while he was speaking.

The problem is that we do not know for how long Sow spoke. Rumors are circulating that his microphone was cut off. It also seems unclear whether he had finished his statement. Although some of what he said seems to have been transcribed by the SCSL stenographers, there is no record of Sow’s statement in the official SCSL transcript. Presumably, this is because a 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 Sow said.

A review of the April 26, 2012, hearing transcript confirms that all three of the regular Trial Chamber II judges, along with Alternate Judge Sow, were present. They 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., 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 found Taylor guilty. So, the court fixed a date for the sentencing hearing. Lussick then declared the hearing closed.

It was then that 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:

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.

This statement is similar, but ultimately 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, although the mysterious character in the Defence appeal version seems intended to indicate a missing word (“serious”), if that is not the case, there is clearly a major difference in saying that there were “no deliberations” and saying that there were “no serious deliberations”. Although it cannot be emphasized enough that there is no way of verifying this (which is why I call for an independent commission), if we assume for the sake of argument that the allegation is true, it would imply that Taylor’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, and to provide a reasoned opinion in writing. That reasoned opinion may include separate or dissenting opinions, both on issues of fact and law.

Although omitting Sow’s statement from the official record seems problematic because it gives the impression that the tribunal has something to hide, there is a solid counterargument. In their September 13, 2012, decision, the SCSL Appeals Chamber ruled that the transcript was “accurate” and “transparent” given that the official hearing was formally closed when Lussick adjourned the court. It could not therefore subsequently include additional statements.

This is all probably true, in light of settled tribunal practice. But, given that the accused’s fundamental rights and the legitimacy of the SCSL’s processes are at stake, I beg to differ. To begin with, it is evident that the appellate judges did not concern themselves with the veracity of Sow’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 cognizant of the negative public perception that 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 in plenary. But that would seem like a weak counter-argument because that process addressed the propriety of the alternate judge’s public statement instead of the truth or falsity of its contents.

If this contention is correct, the question arises what should be done to establish whether deliberations took place or not. Despite the practical difficulties presented by this proposal – especially a financial one for the notoriously cash-strapped 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 of what happened in chambers relative to Sow’s allegation. The UN, Sierra Leone and the Management Committee of the tribunal should back this initiative.

One objection to this proposal would be the argument that such a process would infringe upon judicial independence. According to the SCSL statute, the judges are to be independent in the exercise of their functions, and are not to seek or accept instructions from any other source. Once the judges have given their reasoned opinion in writing, it is implied that they owe no additional explanation.

However, an independent fact finding commission would not undermine judicial independence. Moreover, it would not violate the SCSL statute because the commission would not seek to influence the verdict that has already been reached in Taylor’s trial. The commission would solely examine the truth of the allegation relating to deliberations. In other words, its role would be for the anterior purpose of establishing whether the judges followed procedure consistent with the rights of the accused given the weighty allegation by the alternate judge, who was a close observer of that process. If they did, then it will legitimate the final outcome of the deliberations process. If they did not, then that too can be taken into account.

Besides laying this controversy to rest, under the latter scenario, any newly discovered facts could be folded into the review proceeding conducted by the Appeals Chamber during Taylor’s appeal – but only if it could have been a decisive factor in the trial chamber’s determination of Taylor’s guilt as the SCSL statute requires. In such an instance, if the irregularities are not so fundamental as to invalidate the trial judgment, the appeals judges could exercise their sound 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 disciplinary step the Trial Chamber took was to remove Sow’s name from the Taylor judgment. Sow also did not attend any subsequent hearings. These appear to be hastily adopted measures taken by the Chamber before Sow’s discipline process was even completed. Under the circumstances, the judges were undoubtedly justified in taking some measures to address the matter. However, the SCSL should not leave the perception that disciplinary proceedings were initiated against Sow for political reasons, to punish him for holding different views or for the apparent infighting between him and his colleagues throughout the long trial. Most significantly, the tribunal should not leave the wrong perception that the disciplinary process which subsequently concluded Sow was “unfit” to serve as a judge was tainted because it did not comport with basic principles of natural justice.

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 refer the matter to the Council of Judges. According to the recent appeals chamber decision, after the hearing on April 26, 2012, Lussick sent an email on behalf of Trial Chamber II to then President of the Tribunal Jon Kamanda. Kamanda treated that email as the formal complaint against Sow’s alleged unfitness to serve. Kamanda exercised the option, as he is permitted, to refer the question to 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 (the Taylor) trial chamber was operational at the time of the complaint against 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 is substantial basis for the allegation. The Council then refers the issue to the Plenary of all the judges which considers the issue and, if necessary, recommends a course of action to the appointing authority.

It is implied that Sow’s 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 did in fact participate in the president’s decision to refer, that would be odd because he would effectively have been a judge in his own cause for the predicate findings of the seriousness of the allegation and the subsequent decision to refer it to the plenary. One might retort that once he filed the complaint, Lussick 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 is one way to justify his wearing of two hats. By the same token, if Lussick participated in the second decision – an admittedly speculative conclusion at this stage – it would seem highly problematic for the complainant judge to also participate in the decision on what do with the complaint.

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 record by Lussick on May 16, 2012, fourteen 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 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 “filed” on April 26, 2012, and the alternate judge responded to it on May 1, 2012, it appears that a further “six-page statement” was prepared by Sebutinde which purported to be the formal complaint against Sow. That document, in King’s words, contained “new” and “scurrilous” allegations against Sow. If true, this is highly disappointing conduct, especially for a judge that after the Taylor verdict went on to take up a position on the bench of the International Court of Justice.

Sow was apparently not notified of this additional complaint in the Plenary. Nor did he partake in that meeting. It is uncertain whether he was even invited to attend or 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 King raised the alarm about the impropriety of not respecting Sow’s right of response. This “perversion of justice”, as King called it, led the appeals chamber judge to walk out of the Plenary. He, therefore, did not endorse the formal resolution finding Sow unfit to sit and distanced himself from the decision.

Although King’s position is laudable, the new information that he has revealed has raised more questions than answers about the tribunal’s private handling of the Sow affair. Even more disturbing is that King insinuated that efforts were subsequently made to erase Sebutinde’s statement from the plenary record. He did not say by whom but, reading between the lines, it seems likely that Sebutinde and, worse, the other judges might have been involved. If this hunch is correct, then that too is even more troubling behavior from the bench of an international criminal tribunal.

Ultimately, there are questions about the validity of the disciplinary resolution since it appears uncertain how many judges voted in its favor, against it or abstained. It is also unclear whether the decision comports with procedural rules since the only thing the Plenary could do is recommend to the appointing authority (i.e. the UN secretary-general and the government of Sierra Leone) a course of action.

In the end, it is difficult to understand how the plenary could determine he was unfit to serve as a judge and prevent him from further participating in the Taylor Trial because he spoke when he was not allowed to without first resolving the predicate factual question of whether he told the truth, which might then (retroactively) justify the making of the statement, or alternatively, that his allegation about the absence of deliberations was a simple case of sour grapes from a bitter judge who then deserved the weighty sanction of “unfit to sit” that could have effectively killed his international judicial career. In any event, the appointing authorities are free to accept or reject the plenary recommendation. Yet, we do not have any information in the public domain confirming the UN and Sierra Leone adopted their view that Sow was unfit and should therefore be removed.

Conclusion

Unfortunately, this type of controversy is not new to international criminal law. At the International Military Tribunal for the Far East (IMTFE) in the aftermath of World War II, an early agreement to refrain from dissents in the final judgment fell apart before the proceedings even concluded. The result was that although the IMTFE charter did not formally provide for separate opinions by the judges as modern tribunals do, there were two dissents from Judges Radhabinod Pal and Henri Bernard and a partial dissent by Judge Bernard Roling.

The most famous dissent was 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 Neil Boister and Robert Cryer: “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 Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgements at lxxx).

Similarly, Bernard issued a dissenting opinion from the majority explaining that he was doing so “both on questions of law and fact” as it was necessary “in fairness to the Accused” and 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 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 differs in involving a non-voting alternate instead of regular voting judges like those at the IMTFE, history teaches that the SCSL is not unique. Indeed, contrary to the suggestions of some commentators, the SCSL is in good company with the International Criminal Tribunal for the Former Yugoslavia where also regular (not alternate) judges have been known to dissent wholly or partially on factual or legal findings from their judicial colleagues during trial judgments in cases such as Simic and Galic.

As the tribunal considers this unique proposal for the establishment of an admittedly unprecedented, fact-finding commission to shed light on the veracity of Sow’s allegation, it seems befitting to conclude with a quote from Pal, who in his voluminous dissenting opinion said the following of the IMTFE that could just as well be said about the SCSL and the verdict in Taylor’s 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 as an “extraordinary situation” by showing the world that it has nothing to hide, history will be forced to judge it. However, history might be more generous to it than the IMTFE if the SCSL established transparency regarding what exactly happened in the chambers deliberations over the guilt or innocence of former Liberian President Charles Taylor.

 

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, and is grateful to Dapo Akande for helpful comments on an earlier draft.

 

32 Comments

  1. I am afraid the integrity of the three (3) judges, the trial and also this “open” society website is irreparably tarnished. The judges had already determined the narrative on which their judgement was to be based and this goes in line with the American version touted by the American prosecuting team. This “objective” website also disregarded the Justice Sow incident in court by treating it as a non issue thus not mentioning anything concerning it at all . The clear fact is that corruption has been perpetuated by the SCSL/Trial Chamber 2 against Mr Taylor the accused, against Justice Sow who’s rights were violated, and agaist the public who were taken as fools and whose trust have been brazenly betrayed . Above all, the most shocking issue to me was the transformation of Julia Sebutinde whom I wrongly believed to be the only incorruptible one amongst the three. I guess she ultimately chose “five pieces of silver” over the important principle of – “Beyond Reasonable Doubt”.

    1. rpg007
      what rights of judge sow?
      he was only the fourth judge and not to vote.
      is there something you do not understand? read the text once more, hombre.

      1. Sneez,
        Since you obviously do not have anything of constructive value to add to this site I suggest you stick to fellows of your same mentality. You don’t have to write anything simply because you borrowed a computer. Simply because things like you do not have or know rights does not mean others like Justice Sow do not have any. Stick to your day job “Swipe”.

        1. Rgk007, what is the point of being rude toward SWIZZ? At least he got a ‘job’ while some on this site live on handout, it seems. And what do you mean by ‘SWIPE?’

        2. I am sure you have known me on this site to make what I deem in my opinion to be objective analysis of whatever topic is – at that time – presently on ground. I have over time engaged sometimes in constructive debate with your very self Fallah and sometimes exchanged words. I consider this a more healthy engagement than for an individual to – for the sake of wanting something to say in opposition, – act like a pest. This is the character of the man whom you say has got a “job” portrays to me. In hindsight, I wish I had ignored the unhinged and non mind stimulating comment thrown about by Swiimp (he seems to create names for others) as that would have been the best decision. So you see it was never my intention to be rude to anyone and I just coined the name for him. I am from Nigeria -the giant of Africa- and do not have any personal stake in this matter but for the interest of justice for any issue that pits Africa against the “Super-powers”. I mention this once again because I do not want to be muddled up with any petty vendetta ensuing in Liberia. Where I come from we deal with our problems -and we have many- such as war crimes;corruption;tribalism etc. internally and not feed our own to the wolves via any guise. Lastly, Good to see you’re well and not living on “handouts.

          Rgk007, London.

        3. James Blond

          take it easy, mann.
          i’m not killing anyone on this site, i only asked you two questions.
          okay, my saying of reading the text once more, wasn’t very polite.
          but as you name three judges corrupt, my saying is still friendlier than yours.
          salute

  2. This is a very interesting ariticle. Sadly the fact remains that Charles Taylor had been found guilty way before the trial even started. However Justice Malick Sow has thrown a “monkey wrench” into the whole affair with his utterances that the West did not expect. For this reason the verdict will be for ever blemished in the eyes of true justice seekers.

  3. Charles,

    It would help all who have been following the Taylor Trial if you could throw some light on why Justice Sebutinde continued to “pretend” (she was hardly at the Court, either busy campaigning or already busy with her ICJ duties) to be a member of the Charles Taylor Bench when there was an alternate Judge who should have naturally taken over the moment she became unavailable. Technicaly she became unavailable when she took her Oath at ICJ. Why did she not resign as stipulated by ICJ rules which do not permit Judges to sit on any other Court. Why were ICJ rules flauted or bent in order to ensure that she was part of the Bench and Sow would not technically assume a role as a substantive Judge. An Alternate Judge had been paid for 5 years, he was the only individual who had sat through the Tailor case without missing a single day. Why was it so important that Julia Sebutinde was maintained on board. Those of us who were at the reading of the Judgement know that Sow started reading his statement before the other three had risen. When Lussick announced that the session had been adjourned. Sow immediately said, before we adjourn, for me, for me I have my statement to read…….this was the much we were able to catch before a grade descended and cut us off. But Julia Sebutinde lead the standing up to leave court when Sow was already reading, so they can not tell us that they did not know he was going to read the statement, they did and he started reading it while they were all still seated and before they rose to walk out on him. Can you help us understand why it was so important that Julia remain on board when there was a readily available Alternate Judge to take over. If you link this to Sow’s previous utterances, it appears he believed he was a substantive Judge the moment Sebutinfe was elected to the ICJ. Could there be a link between Sebutinde’s near miss election to the ICJ because the Security Council blocked her and her turn around to go for Sow. Could this be what she paid in order to get to the ICJ. Could Taylor have been sacrificed so ICJ.

  4. Okay, we understand all the ‘delay tactics’ that are being imployed in this trial, and all the “ifs” and the rest of it. However, the truth remains that Charles taylor is guilty of the crimes he was accused of, and must pay the price. Any irregularities in the trial do not change the facts. Besides, this is simply an opinion expressed by an observer that was not a sitting judge in this case, and therefore should be treared as such. Taylor is rejoicing prematurely to think he may go free in his wildest dream!

  5. Deborah,
    Our African sister Julia Sebutinde was bought over with her appointment on the World Court. Imagine all the negative thoughts we know the United States had about her with the release of the Wikileak cables. Yet the same United States magically had a change of heart and cast their vote infavor of her being appointed to the World Court. It is plain and simple the United States promised Ms. Sebutinde their vote if she inturn would send Charles Taylor to prison for the rest of his life. WHAT A SHAME !

    1. Here we go again with ‘conspiracy theory’ and hateful conclusions without supporting facts, nor any logical reasoning that would back premise in anyway! Why does America got to do with your African Judges’ thoughts or decisions? Does this make senseble reason for anyone to buy such conclusion? I really don’t believe such reasoning, but again, continue to say it so that it may stick; just like a republican candinate; when you continue to lie or misinform time and again, people may believe you! Boy, africa is so many light years away from producing thinkers that worry about history analizing tomorow what they say today. Falsehood seems to be call of the day with no shame nor worry about one’s integrity. That is all I have to say about that.

  6. JFallahmenjor,
    I am asking logical questions based on facts. 1. We have an Alternate Judge appointed and paid for 5 years so that he is ready to take over and replace a judge when a need arises.
    2. A need arises when a Judge (Julia Sebutinde) is appointed to the ICJ whose rules strictly require her to resign from the SCSL.
    3. She refuses to resign and continues sitting at SCSL even though her resignition would have no consequence as an Alternative is readily available. Let’s put this in the context of the ICJ elections.
    4. It takes 12 rounds of voting before the Security Council allows Sebutinde to go to the ICJ.
    5. Before the ICJ elections, the lady is fighting with USA, calling them racist in a press conference in her homeland in December of 2010 after wiki leaks reveals what they think about her.
    6. Before this is refusing to sit on a disciplinary bench for Taylor’s Counsel.
    Is it unreasonable to ask what it was that changed her mind so drastially as to start concocting 6 pages of defamatory material to make sure Judge Sow is not allowed anywhere near the Court room.
    Do you not see the logic to the conspiracy. That is the reason we would like to know why she did not resign to pave way for Sow to become a substantive Judge?
    Can anyone answer this question, amy be Open Society knows the answer as to why this person did not resign but flouted ICJ rules.

    1. Deborah, you may need to also re-read others views in this matter such as:” why was Judge Sow prohibited from making his “ambush” statement.Besides,”Ultimately, there are questions about the validity of the disciplinary resolution since it appears uncertain how many judges voted in its favor, against it or abstained. It is also unclear whether the decision comports with procedural rules since the only thing the Plenary could do is recommend to the appointing authority (i.e. the UN secretary-general and the government of Sierra Leone) a course of action.” Unquote;This is why I believe that before crying foul, we need to think before talking and leave emotions out of it.I respect your approach other than those who mix personal emotions with factual presentation!

    2. deborah
      quite a story you tell us here.
      what had changed, if sow was one out of three?
      Since the the trial chamber finds taylor the warlord unanimously guilty, it wouldn’t have changed a thing, you know.

  7. J Fallah Menjor,
    Did you know that the United States voted for Julia Sebutinde to sit on the World Court over a Sierra Leonean judge who was already on the bench of the court vying for another term? What is most shameful is that organizations such as the one who sponsors this site have not questioned how a Judge Sebutinde deliberating on the most important case she has ever handled could somehow be so professionally bankrupt as to accept another appointment to a different court.

  8. Thanks to all of the readers of this blog for your comments on my article over the past few days.

    Regrettably, I am only now getting a moment to offer a few reflections on the key issues that the comments have raised.

    First, to Rgk007 and Aki, I obviously share the concerns about the Alternate Judge Sow Affair. That was the point of my article. I also agree that the public has a right to know whether Sow’s allegation is true or not. That is why I argued that the issue should be aired by an independent commission that has no interest in the outcome other than determining what happened.

    However, it might not surprise you to hear that I disagree with the conclusion that Trial Chamber II and the SCSL itself were “corrupted”. That is certainly not a “clear fact”, as Rgk007 claims. To convince us that this is a fact, you would have to provide incontrovertible evidence to that effect. You did not offer any. For similar reasons, I also dispute Aki’s assertion that the outcome of the case was predetermined. Why in the world would the UN sanction such a lengthy trial process that effectively began with Taylor’s arrest on 29 April 2006 and still continues today just to waste all that money and time when we know the outcome in advance?

    In a previous life, I had the chance to work as a legal adviser in the SCSL and court-appointed duty counsel to Mr. Taylor. I saw the process up close. I followed it closely after I left. While I will not claim that the trial was perfect, in fact no international criminal trial is, it appears to me that, overall, it was fair in so far as it comported with the general requirements of international human rights law. Certainly, without meaning to disrespect all the other good defense lawyers who fought so hard and passionately for their clients in the other 8 SCSL cases, in terms of the opportunity and resources given to test the prosecution case and to put his own side of the story forward, there is probably no other SCSL case that achieved the standard reached in Prosecutor v. Taylor.

    To be clear, although when I was at the tribunal I was among those who fought for Taylor to enjoy his rights, in particular as they related to counsel under Article 17 of the Statute, I do not believe that the process was tainted by corruption, that his was a show trial whose outcome was predetermined or ultimately that the court itself was nothing but a kangaroo court. In sum, even though I concede that we will all sleep better at night if we get to the bottom of the Alternate Judge Sow incident, I do not think that we should throw out the justice baby with the bath water.

    Secondly, for jfallahmenjor, my article was not a delay tactic. I wrote as an observer of the process who is concerned about its integrity, and the perceptions left in the minds of reasonable observers, but definitely not as a lawyer representing Taylor. Neither did I claim that Taylor was innocent. That is not my job to decide, since as you noted, I was not a judge in the trial. That role was given to others far more experienced than myself in the form of Judges Lussick, Sebutinde and Doherty who heard the case over several years. They gave their answer on April 26, 2012 that he was guilty, and as you know, sentenced him to 50 years imprisonment thereafter. So, from that point of view, you and I are on the same page.

    The only glitch is that, under the law, Trial Chamber II is only allowed to find him guilty after having properly deliberated over the prosecution and defense evidence. So we part company when you say that “any irregularities in the trial do not change the facts”. You may well be correct, if as a matter of fact it turns out that there were only minor irregularities that did not affect the final guilty verdict in his case. But, given Alternate Judge Sow’s serious allegation, to which we do not yet have any official answer – at least one known to the public – how can we be certain that the alleged irregularities in the chambers deliberations do not displace the guilty verdict?

    Finally, to Deborah (and Aki), who have raised and debated many new and frankly disturbing claims. These issues, to my mind, can be divided into four main categories: 1) those relating to Judge Sebutinde (and her position on the Taylor verdict and alleged change of heart at the last minute); 2) what happened in the court when Alternate Judge Sow read out his statement and whether the other judges can credibly tell us they did not know about his dissent in advance; 3) whether, given Sebutinde’s election to the ICJ, she bent or flouted the ICJ rules by staying on the Taylor case; and 4) whether her decision not to resign her SCSL judgeship might not vindicate Sow’s decision to speak out publicly because he might have formed the correct view that he was a substantive judge as of her election to the World Court.

    I cannot address the first two issues for three reasons. First, much of what you offer constitute speculation that I am learning about for the first time and have no apparent way of verifying. Secondly, I cannot address issues 1) and 2) when we simply do not have all the facts, including some information that would have to come from the SCSL leadership and the Trial Chamber II judges. Thirdly, it seems unwise to speculate on such weighty issues in a public forum like this without any hard evidence. By the way, all these claims that you make, reinforce why we need an independent commission to shed light on Sow’s allegation regarding what happened in the chambers deliberations in the Taylor case.

    That said, despite these constraints, I would take up issues 3) and 4), not so much their factual aspects as much as the legal ones, as those are the more interesting issues that you raised – at least from the perspective of a lawyer.

    Although we know balloting started for the five vacant seats on the ICJ bench at the UN in New York on 10 November 2011, it took until 13 December 2011 before the process was completed. You are right that there were up to 12 ballots, in an actually highly divisive and unfortunate process, before Sebutinde finally obtained the votes required in both the General Assembly and the Security Council to be elected to the bench of the World Court. She thus displaced a fellow African, Judge Abdul Koroma (from Sierra Leone), to obtain the post. (As a side bar, observers familiar with that process have reported that she might have even gone behind Judge Koroma’s back and secured the African Union endorsement of her candidature. This gave her an advantage at the General Assembly over an ICJ veteran who might have become, going by his seniority had he been re-elected, the first African president in the history of the World Court).

    That said, although you would have to ask her why she hung on to be part the final verdict in the Taylor case as I do not know the answer to that question, one clarification I can make is that she was not considered an ICJ judge as of the moment of election on December 13, 2011. Rather, her formal position at that court started on 12 March 2012 when she was sworn in.

    Yet, your concern remains valid because as of that March 2012 date, considering that Alternate Judge Sow was present and could have stepped in to replace her under Rule 16 of the SCSL Rules of Procedure and Evidence, she could clearly have stepped aside without disrupting the completion of the Taylor trial judgment. The problem is that she did not. Maybe because she wanted her name on the judgment against Taylor, after having sat on the trial since the case opened on 4 June 2007. Maybe because she did not want the alternate judge to get the glory, or because she suspected or knew Sow would dissent if he replaced her and wanted to wait, for whatever reason, to ensure that the judgment against Taylor was unanimous instead of 2 to 3. Indeed, for reasons that I cannot speculate about because I honestly do not know, she stayed with the SCSL until after he was sentenced to 50 years at the end of May 2012 before departing for the ICJ.

    What I can say is that I highly doubt that she violated the ICJ Rules by continuing on the Taylor case. Firstly, if that were the case, the ICJ President, who would have had to approve her taking up the new judgeship later than the other newly elected judges, would presumably have refused her permission to continue with the SCSL. Still, as you seem to imply, under Article 16 of the ICJ Statute, no member of the World Court “may exercise any political or administrative function, or engage in any other occupation of a professional nature”.

    As I explained in a previous article, that ICJ provision speaks for itself. Basically, it prohibits the World Court judges from exercising political, administrative or other professional functions elsewhere while holding a position on the ICJ bench. I can add a few more observations. Firstly, the provision seems permissive rather than mandatory. Secondly, it says that “no member” of the Court. In this instance, she would have been deemed a member only as of the date of the oath (not before). Thirdly, although judicial functions are not explicitly mentioned and would presumably fall within the “any other occupation of a professional nature” category. If that is so, it seems difficult to conclude that her role as an SCSL judge was incompatible with her ICJ functions when she was not deciding an inter-state dispute rather than the guilt or innocence of a defendant from a prior case before an ad hoc international criminal tribunal.

    Finally, even if Alternate Judge Sow believed that he had become a substantive judge once Sebutinde was elected to the bench of the ICJ, or more precisely after she took the oath of office in March 2012, that would not justify his decision to speak out under the rules. The reason is simple: alternate judges are “designated” in accordance with Article 12(4) of the SCSL Statute rather than self-nominated to the post. It is in fact the presiding judge of a trial or appeals chamber that “shall designate such an alternate judge” to replace a regular judge who is unable to continue sitting. No such designation was ever made (although, since then, in the Appeals Chamber, Judge Philip Waki was “designated” by the President of the Tribunal as an alternate judge for the purposes of Taylor’s appeal).

    In other words, Sow self-designating himself into that role would not be sufficient to meet the requirements of the statute. And, if for whatever reason he would have believed that he could, then that would raise different questions as to his competence to sit as a judge in the Taylor case when the applicable rules are simple and straightforward and were not engaged because of Sebutinde’s decision to continue.

    I hope that my response sheds further light, and thanks again for your comments.

    Best,

    Prof. Jalloh

    1. dear prof. jalloh
      what if the court has to sit over every comment someone makes?
      judge sow can leave a comment on his dissenting opinion, like it is standard e.g. in the constitutional court of South African, or on the EuGH.

  10. Too bad Taylor’s million are in haven. The Special Court and the United Nations have reached a dead end in finding and locating Taylor’s millions after they make us to believe that Taylor sold diamonds and saved millions in oversea banks. What a disgraceful shame? This trial was about the powers bringing Taylor to his knees because he refused to give them Liberia oil. Now that they have the oil, and there is no millions, can they please let the pa-pay go? God have mercy and bless my father’s land.

    Harris K Johnson

    1. Harris; the millions rumoured to have been stolen are stacked in dozens of fictive accounts, probably under names that sound legitimate and credible such as cell-phone companies, and or oversea businesses that are flourishing in Liberia today. this is not new to Liberia; Tubman, allegedly, left secret accounts in Swiss Banks, and only rumoures shed light on it, when he died in 1971. Maybe some were too young to remember this. Secondly, Samuel Doe was rumoured to have stacked millions into overseas accounts, but yet to be found. However, for taylor, we are not only seeking the millions, allegedly, stolen, but justice, which in this case have been served! Let those who got the millions keep it so Liberians can have great developments from Western donors they seem to rely so heavely on for such handouts. i sometimes wonder which way most Liberian are on; crying for justice for only selected individuals, and defending to death others they have benefited from, on the other hand. Finally, because the millions can not be found, does not mean that the hurrors created by taylor are false, nor the scars of taylor rebellions faded from victims. Go have a party and celebrate the greatest achievement for you , now that the stolen money is no found, Harris.

      1. fallah
        you name it.
        the authorities should look carefully for the money in banks abroad. british, swiss, and some american banks are famous for hiding money for corrupt leaders. but there are clear procedures for the authorities of liberia or sierra leone to ask for such accounts.

  14. again

    why should three judges exclude one, as suggested by sow in the article (page 49 on height of ct’s tye-knot)? Exclude especially the one who has anyway “nothing to say” (not to vote), doesn’t make any sense.

  15. “Morris Anyah, Taylor’s lawyer, said he wants to call Sow as witness in the appeals process and has asked for a waiver of Sow’s immunity from being called as a defence witness.” (out of reuters canada.)

    cool, a judge as witness.
    what i’m thinking all the time is: what interest could judge sow have?
    at least it is still 3:1 – 3 in favour of the judgement, only sow against.
    As mentioned earlier: it hadn’t changed a thing in the outcome.
    its only a shame, that now we suddenly discuss about the whole international criminal law, instead of apologies or other things like that.

  17. what is coming out of this trial doesn’t really give any god impression about this court at ALL.Judge to stand as a witness,where in this world this have happen before?
    There need to be a serious independent investigation into this whole trial of Taylor.
    Judge sow need to be ask to bring his prove that Taylor wasn’t guilty and also the three judges need to prove where and how they found guilty with documentary evident.
    If those three judges can’t produce documentary evident then there is something wrong.you can’t convict someone of this vital trial with just verbal accusation.
    YOU SAY AND I SAY CONVICTION WON’T WORK AT ALL.

  18. If an alternate judge would mean true justice be served I don’t see what the problem is. At the end of the day Taylor belongs in jail so let it be done the correct way with no impartially.

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