JURIST Columnist Charles C. Jalloh of the University of Pittsburgh School of Law examines the role of Alternate Judge El Hadji Malick Sow in Charles Taylor’s trial and recent conviction and discusses the implications of Sow’s decision to publicly disagree with the unanimous verdict issued by the Special Court for Sierra Leone…

Introduction

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

As has been widely reported since, the judges unanimously found Taylor guilty of five counts of crimes against humanity, five counts of war crimes and one count of other serious violations of international humanitarian law on April 26, 2012. These acts were perpetrated by the Revolutionary United Front (RUF) rebels acting in concert with mutinying elements of the Sierra Leone Army known as the Armed Forces Revolutionary Council (AFRC) in the period between November 30, 1996 and January 18, 2002.

Taylor was convicted as a secondary perpetrator (i.e. as a planner, aider and abettor) of murder, rape, enslavement, sexual slavery, acts of terrorism, pillage, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons. He was also found guilty of conscripting or enlisting children under 15 years of age into the service of armed forces, or groups, and using them to participate actively in hostilities.

Although the Chamber has not yet issued its authoritative trial judgment setting out the full reasoning behind its conclusions, the judges made some significant factual and legal findings in the 44-page summary judgment that Presiding Judge Lussick read out in open court for about two hours. Having convicted Taylor, they fixed May 16, 2012 for an oral sentencing hearing with each of the parties allocated one hour to address the Chamber. Taylor was offered up to half an hour to make a statement, should he so wish. The sentencing judgment will follow two weeks later on May 30, 2012, and, if the trial judgment is upheld on appeal, the 64-year-old Taylor will be transferred to the UK to serve his jail term.

Although the Rwandese head of government, Prime Minister Jean Kambanda, pled guilty to orchestrating genocide and crimes against humanity at the International Criminal Tribunal for Rwanda (ICTR) based in Arusha, Tanzania on May 1, 1998 — Taylor is the first former president to have been indicted, fully tried and now convicted in an international criminal tribunal since the immediate post-World War II trial of German Admiral-turned-President Karl Doenitz at the Nuremberg International Military Tribunal.

Not surprisingly, many thoughtful legal scholars, such as Professors Dianne Marie Amman, Jens David Ohlin, Valerie Oosterveld, Bill Schabas and Kevin Heller, and other well-regarded practitioners such as Kelly Askin, Jennifer Easterday, Sara Kendall and Alpha Sesay, have already weighed in on key issues raised by the verdict in Prosecutor v. Charles Ghankay Taylor. These include the Chamber’s legal findings on joint criminal enterprise, command responsibility and gender crimes.

An Omission and a Problem

Briefly mentioned, but not as well discussed by most commentators so far, has been the weighty decision of Alternate Judge El Hadji Malick Sow to enter a “dissenting opinion” to Trial Chamber II’s unanimous judgment. In this article, I attempt to fill this lacuna by examining Sow’s publicly expressed views on the verdict. I argue that, while the content of his statement gives cause for some concern and ultimately reflects the tension evident throughout the trial between him and the other three judges, expressing public views on the verdict was unfortunate because the effect might be to impugn the credibility and legitimacy of an otherwise fair trial that met the due process standards of the Statute of the SCSL and international human rights law.

The Provision for Alternate Judges at the SCSL

In providing for the composition of the Chambers in the Agreement between the UN and the Government of Sierra Leone on the Establishment of the SCSL, Article 2(2) anticipated the appointment of up to two alternate judges who, upon the request of the president of the SCSL, can be designated by the presiding judge of a trial chamber or the appeals chamber “to be present at each stage of the trial and to replace a judge if that judge is unable to continue sitting.” The same provision is repeated in Article 12(4) of the SCSL Statute.

The SCSL Rules of Procedure and Evidence shed further light on the role of the alternate judge. Under Rule 16 bis (A), they confirm that “an alternate judge designated in accordance with Article 12(4) of the Statute shall be present at each stage of the trial or appeal to which he or she has been designated.” Even though the alternate must always be present, under Rule 16 bis (B) to (D), the limited backup or reserve role that he is supposed to play is apparent from this rule and the SCSL Statute. As there can only be three active professional judges to adjudicate a matter, the switch of the alternate from reserve to active judge also requires a predicate decision by the presiding judge or the president after consultation with the other judges.

The Appointment of Judge Sow as the Alternate Judge of Trial Chamber II

The above provisions of the UN-Sierra Leone agreement, the SCSL Statute and the Rules languished in desuetude until Sow was appointed as the first alternate judge. This followed on a recommendation by the late jurist Antonio Cassese, who, in the context of a comprehensive expert report evaluating the functioning of the SL, observed that the Taylor case was of “central importance to the success” of that tribunal.

For this reason, given that Taylor’s case would start much later after the other SCSL trials had been completed and would extend the tribunal’s lifetime, Cassese recommended the appointment of an alternate judge so that Taylor’s trial would “run smoothly and not falter.” He rightly observed that the money spent on an alternate judge that would sit at each stage of the trial to replace a judge who is unable to continue sitting for whatever reason, consistent with Article 12(4) of the Statute of the SCSL, was worth the cost — even for the notoriously cash-trapped Sierra Leone court. He warned that the consequences would be worse if the tribunal “gambled” with the continuity of “such an important case” so late in its expected lifespan.

The UN and Sierra Leone took on board Cassese’s recommendation and, about three weeks before the Taylor trial was scheduled to open in The Hague, Sow was sworn in. The press release [PDF] on the swearing-in ceremony at the seat of the tribunal in the Sierra Leonean capital of Freetown affirmed that he had been appointed, pursuant to Article 12(4), so that he could replace a judge of the Chamber if that judge is unable to continue sitting. Sow has thus been present throughout Taylor’s trial, from the prosecution’s opening statements on June 4, 2007 through to the defense’s closing arguments on March 11, 2011.

Alternate Judge Sow’s Verdict: “Dissenting Opinion” or Public Statement?

While it is not known when Trial Chamber II will make its official judgment available, although this would likely have to be before or around the sentencing judgment scheduled for May 30, 2012, the unofficial 44-page summary read on the day of the verdict indicated that there was a “reasoned opinion in writing” (as required by Article 18 of the SCSL Statute). However, it did not mention any separate opinions. What is certain is that since the Chamber’s verdict was “unanimous” there will be no “dissenting opinion” from any of its three primary judges.

Against this backdrop, it was therefore surprising that, after the presiding judge concluded delivery of the Chamber’s verdict, Sow attempted to give his own “dissenting opinion.” The SCSL Rules, which are based on those of the ICTR, indicate that although the alternate judge must be present for deliberations, he “shall not be entitled to vote thereat.” This makes sense because the idea is that the alternate judge should be able to step in at a moment’s notice to ensure the continuity of a trial if, for whatever reason, one of the other three primary judges are unable to continue sitting. This, of course, was not the case in Taylor’s trial.

Sow essentially performs the judicial equivalent of the role of standby counsel in US criminal trials where the accused chooses to exercise his constitutional right to self-representation under the Sixth Amendment. Standby counsel will follow the trial and step in if a pro se defendant is unable to continue defending his case say, for example, because of illness. The provision for alternate judges in international criminal tribunals is not new and dates back to the origins of international criminal law in the immediate post-World War II period. In recognition of the important reserve role that they play during the proceedings, the SCSL Rules permit an alternate judge to pose questions which are necessary for his understanding of the trial. However, they also stipulate that he must do so through the presiding judge. Sow asked questions on a few occasions during the evidentiary phase of Taylor’s case, but he always addressed the parties directly rather than “through” the presiding judge.

Given the various limitations imposed by the SCSL Statute and Rules, Sow’s public remarks regarding the Chamber’s verdict amount to a public statement or commentary. Unlike his contention, his remarks do not have the legal character of a “dissenting opinion” — at least as that term is understood under the tribunal’s constitutive instruments. True, the statement qualifies as a “dissent” because, as the Concise Oxford English Dictionary confirms, he expressed “disagreement with a prevailing view or official decision.” While Sow is clearly entitled to formulate his private views on the sufficiency, or lack thereof, of the prosecution’s evidence against Taylor, the public commentary he gave seems designed, if not in purpose but in effect, to undermine public confidence in the credibility of the tribunal.

As it seems unlikely that the other judges were aware of Sow’s plan to “dissent” in court, concerns about propriety might have prompted them to hurriedly depart the courtroom at the same time that Sow’s microphone was reportedly cut off. Although his entire statement below was captured by the court’s stenographers and apparently struck from the official version of the court’s transcript [PDF], it was later widely circulated on the Internet:

The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the Rules, when there is no serious deliberations, the only place left for me in the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure. Thank you for your attention. [Emphasis added]

The preliminary question arises whether Sow was entitled to give his views on Taylor’s ultimate guilt or innocence in Chambers. Let alone in public. Rule 16 bis (C) does specify that the alternate judge shall be present “during the deliberations of the Trial Chamber.” At first blush, there is a measure of ambiguity in this provision because mere presence does not imply the right to participate in the deliberations as an equal. But the last part of Rule 16 bis (C) does remove that ambiguity because it explicitly states that the alternate judge “shall not be entitled to vote” during the deliberations. Consequently, even assuming arguendo that Sow had been asked during deliberations to offer his take on the evidence as a matter of judicial courtesy, he would have had to be content with sharing those views privately because he is not entitled to vote on the outcome. Otherwise, it would contravene the SCSL Statute and violate longstanding international criminal tribunal practice that only provides for three professional judges to adjudicate a criminal trial instead of four.

As an experienced and respected Senegalese jurist, Sow must surely know that, under Rule 29 of the SCSL Rules, “the deliberations of the Chambers shall take place in private and shall remain secret.” Nonetheless, in the above statement he alleged that he was never given the opportunity to express his views in Chambers because there were “no serious deliberations.” Given the secrecy of the deliberations, and without more details, the full weight and implication of his allegation is hard to unpack. It seems obvious that Sow felt that he should have been given the chance to share his opinion on the prosecution’s evidence against Taylor. It would also be a serious cause for concern if a group of three professional judges who, under the terms of Article 13(1) of the SCSL Statute, must be persons of “high moral character, impartiality and integrity” possessing the qualifications required in their respective countries for appointment to the highest judicial offices, would convict — and soon sentence — a man for some of the worst crimes known under the law without engaging in “serious deliberations.” Especially in a complex and historic trial like Taylor’s.

Yet, for the sake of the credibility and legitimacy of the SCSL’s justice process, one should not ignore Sow’s public comment on the Chamber’s verdict because of the serious allegations it makes. For one thing, it is plausible that, fully aware of the limitations imposed on him by the governing provisions discussed earlier, Sow had become so concerned about procedural irregularities and the outcome of the case that adherence to the constraints imposed by the SCSL Statute and rules seemed unworthy at the level of principle. Although highly vague, and perhaps reflecting the best of good intentions, what Sow has succeeded in doing instead is to invite public speculation both about the substantive content of his statement and the reason why he made it. This is especially true when considering this remark:

And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.

All does not seem lost, however, since even Sow acknowledged that there were some deliberations in the case. His main objection appears to be that they were not “serious” enough to justify a guilty verdict. Even assuming that his contention is correct, and we have no way to know this, it should be clear that it is possible that there were many more deliberations of which he was simply unaware. Yet, that too does not resolve the alleged mischief because of the legal requirement that he had to be present under the relevant provisions. If he was not present, say because he was not notified of certain deliberations, then that too might constitute a breach of procedure on the part of the Chamber. In any case, perhaps because of his recognition that the decision to speak out publicly about private judicial deliberations would be controversial, he suggested that he was essentially left no choice but to air his views in the last place possible: the courtroom.

A History of Judicial Confusion About the Proper Role of the Alternate Judge

Regrettably, this latest drama in Taylor’s trial regarding the reserve judge is not an outlier. In fact, issues regarding the judges have come up before. Throughout Taylor’s trial, there appeared to be a fundamental misunderstanding of the function and place of the alternate judge. At times, this conflict seemed to rise to the level of public disagreement and discord among the Trial Chamber II judges. This argument does not seem far-fetched considering that Lussick, Doherty and Sebutinde sat alone as Trial Chamber II for years without any alternate judge in another SCSL matter: the three-accused AFRC trial. That matter also happened to be the first, seminal case ever completed by the SCSL.

On February 9, 2011, Doherty and Lussick issued a majority decision order directing the lead counsel for Taylor, Courtenay Griffiths, QC, to appear before the Chamber to apologize for refusing to remain in court when he had been ordered to do so by the presiding judge or face the prospect of disciplinary sanction. One of the primary Trial Chamber II judges dissented from that directive.

On the date selected for the hearing, February 25, 2011, only Doherty, then acting as presiding judge, Lussick and Sow attended court. Sebutinde refused to show up, sending an explanatory note to her colleagues that morning explaining that she had absented herself from court for reasons of principle. This occurred despite the fact that disagreement with a majority decision does not constitute a valid legal reason for a judge to refuse to attend court. She later explained that she was opposed to any “side proceeding” against counsel that could distract the court and potentially delay completion of Taylor’s case. Again, this reason, even if well-intentioned, does not suffice to justify her surprise, last-minute absence.

Be that as it may, the pressing question became how to proceed with the hearing. Doherty asked counsel to address the court on the issue. Defense counsel conferred for less than a minute and then suggested the obvious: the Chamber should invite Sow, who was present as the alternate judge, to participate so that the bench would be constituted of three judges. The alternate judge responded to this proposal in a way that exposed both his understanding of his role as a reserve judge and the acrimony in the Chamber:

Let me make this very clear: This Bench is regularly composed with three judges sitting, as it shows. Two judges cannot sign decisions. When the Bench is sitting, it’s sitting with three judges, not two judges, and I don’t know what. I’m not here for decoration. I am a judge. This Bench is regularly composed, as everybody can see. I don’t know how people can think that two judges – I don’t know where in this world you will see two judges sitting. It’s not possible. This Bench is regularly composed with three judges. This is my comment. No matter how parties will look at it, it shows and it’s apparent that this Bench is composed with three judges. We are three judges sitting.

In a fluid move showing that Doherty and Lussick had discussed the matter before court but had foreclosed the possibility of Sow serving, Doherty did not respond directly to Sow. Rather, she immediately issued the Chamber’s ruling and then adjourned the hearing as follows:

The Articles governing the composition of this Court and the Trial Chamber mandate that it is to be composed of three judges. This is not a situation where rule 16 applies. Accordingly, in our view, this Trial Chamber is not properly constituted and we consider we have no alternative but to adjourn this hearing today. The matter is adjourned for a date to be fixed. Please adjourn the Court.

This decision can be criticized on several grounds. An obvious point of contention is that if Rule 16 of the SCSL Rules, which spells out the regime applicable to judicial absences, resignations and alternate judges, did not apply in the previous situation then what rule would be? The Chamber decreed that Rule 16 was inapplicable, but did not explain that decision. Instead, they left the question open. That led some commentators to speculate as to what dispute was going on between the judges. Even if we accept that there was a lacuna in the SCSL Rules for the sake of argument, could the Chamber not have invoked its inherent powers to regulate its own proceedings — inviting Sow to participate on the Bench so that it would be regularly constituted of three members instead of two? Would anyone have faulted them considering that the party most affected by the alleged disciplinary issue under consideration had, in fact, proposed the alternate’s involvement? One would think not.

In fact, under Rule 16 bis (D), the presiding judge could have plainly asked Sow “to perform other such functions” that the Chamber deemed necessary following consultation with the other judge present. Such functions could include stepping in when another judge was voluntarily absent for whatever reason. This argument would hold despite the seeming difficulty presented by the fact that Rule 16 bis (D) had been adopted on May 14, 1997 — exactly five days after Alternate Judge Sow had been sworn in as judicial alternate for Trial Chamber II.

By comparison, the SCSL rule most “on point” is somewhat less clear than its functional equivalent in the Extraordinary Chambers in the Courts of Cambodia (ECCC). In the ECCC, Rule 77(8) more clearly sets out what to do in the scenario that Trial Chamber II found itself presented with:

In the absence of a sitting Judge, the President of the Chamber may, after consultation with the remaining judges, decide to adjourn the proceedings or designate a Reserve Judge to sit in place of the absent Judge to ensure that the proceedings can continue. Where, however, the replaced sitting Judge is able to attend, the Chamber may, after taking into consideration all factors relevant to the case and being satisfied that the sitting Judge has been fully informed of the evolution of the case during his/her absence, decide to replace the Reserve Judge by that sitting Judge.

Whether under the auspices of the SCSL or ECCC Rules, the conclusion would have been the same. In fact, as the defense counsel later argued in a motion, the Chamber’s “outright” and “abrupt dismissal” of Sow’s offer to step in was problematic at best and, at worst, raised questions about the proper exercise of their “discretion.” Arguably, it was the fear of losing a judge’s participation and disrupting Taylor’s trial with any ancillary matters arising from such a departure that led the president of the tribunal to designate Sow pursuant to Article 12(4) of the SCSL Statute. It is the same reason that motivated the SCSL judges sitting together in Plenary to adopt an amendment to give practical effect to that intention under Rule 16 bis only a few days after the alternate judge was sworn in.

Conclusion

Lacking any legal value, Sow’s public condemnation of the unanimous Trial Chamber II verdict serves only as cannon fodder for the pro-Taylor camps in Liberia and Sierra Leone that have always contended that his trial and conviction are politically machinated. It gives credence to a frequently alleged, but equally frequently unsubstantiated, conspiracy theory that the same Western states responsible for Taylor’s conviction have conspired to “witch hunt” other “strong” African leaders like Sudanese President Omar Al Bashir. Bashir stands indicted for genocide and crimes against humanity by the International Criminal Court (ICC), but the African states have collectively agreed not to turn him over partly because of this conspiracy theory (and also because of the lack of clarity in certain provisions of the Rome Statute).

What is often omitted from this narrative is that it is also Africans that are the victims of the atrocities committed by their own people in countries like Sierra Leone and Darfur. And it is also Africans, especially in the continent’s increasingly sophisticated civil society, who call for international support to ensure that the old culture of “big man impunity” is replaced with a new one of individual accountability.

In this broader geopolitical context, and keeping in mind that we may never actually know the full story behind why he decided to speak out so publicly, the extrajudicial comments in Taylor’s trial may serve only to undermine the positive legacy of accountability that President Ahmed Tejan Kabbah of Sierra Leone and UN Secretary-General Kofi Annan hoped the SCSL would bequeath to the people of Africa and the international community.

Charles C. Jalloh is an Assistant Professor of Law at the University of Pittsburgh School of Law and a monthly columnist for JURIST on issues of international criminal law. Before joining academia, he was a Legal Advisor to the Office of the Principal Defender in the Special Court for Sierra Leone, in which capacity he was appointed to temporarily represent Charles Taylor. All the information used in this article comes from the SCSL website and other public documents. He can be reached via email at jallohc@gmail.com.

Suggested citation: Charles C. Jalloh, The Verdict(s) in the Charles Taylor Case, JURIST – Forum, May. 14, 2012, http://jurist.org/forum/2012/05/charles-jalloh-taylor-verdict.php.