International Criminal Law Ferment: Alternate Judge Sow Tells All in ...

I am a bit late in reporting this, on this blog, as this is somewhat of an old news item now. However, because I have written?op eds regarding the Alternate Judge Sow Affair in the Charles Taylor Case at the Special Court for Sierra Leone (see The Verdict(s) in the Charles Taylor Case and Why the SCSL Should Establish an Independent Commission),?I thought I should at least post the link to the highly fascinating if?troubling interview that the Senegalese jurist recently gave to the UK-based New African Magazine.??

Given the controversy he sparked on April 26, 2012, when Trial Chamber II issued its verdict convicting Taylor for war crimes, crimes against humanity and other serious international humanitarian law violations during the Sierra Leone war, I have long been wondering when Alternate Judge Sow would break his silence and give his side of the story. ?This seemed all the more important given the attention that he had generated among legal commentators in the blogosphere through his vague statement in Court on April 26, 2012 stating that, contrary to the unanimous finding?of the Trial Chamber II judges, the prosecution had failed to prove Taylor?guilty beyond a reasonable doubt.

Even so, I thought that he would refrain from giving a media interview, until the SCSL Appeals Chamber gives its ruling on the Taylor defense motion asking that he be permitted to appear as a defense witness. My speculation was wrong. He has given the Hollywoodesque tell it all post-scandal media interview. One might wonder why do so now. Firstly, it could be that he just wants to set the record straight, and is tired of all the speculation from some of us. Alternately, it maybe that Alternate Judge Sow, and perhaps even the Taylor defense with whom he might be cooperating, thought that it was strategically better to put out more info on this issue now (perhaps as a way of putting more public pressure on the Appeals Chamber to grant the motion).

Be that as it may,?the interview itself doesn't disappoint: it answers previously unanswered questions, and at the same time, contains lots of dramatic details. For example, on the crucial question whether there were judicial deliberations over Taylor?s guilt or not,?Sow confirms?that there were,?but warns that that they were not serious enough and that he was excluded from the most important ones (regarding Taylor's criminal responsibility). According to him, based on what he had?learned from the legal officers working in the chamber, the meetings?had been?moved from the deliberations room?to the offices of the individual judges. The effect of this was to exclude him. As I have shown in a previous article, under the relevant rules, as an alternate judge, he was definitely entitled to be present for the deliberations even though he could not vote thereat.

So, assuming his statement is correct, it is clear that the other judges violated the Rules of Procedure and Evidence.?That said, to me, while clearly not a collegial way to conduct themselves (irrespective of what differences the threee main judges?had with him), it is not entirely clear what the legal consequence of holding deliberations in the absence of the alternate judge is. The Rules do not appear to anticipate?such a scenario, leaving the possibility unaddressed. But, by simple deduction, it would seem to me that his mere lack of invitation, attendance and participation in some of those deliberations, including those relating to Taylor's ultimate guilt, would not be sufficient to invalidate the judgment as such. Something more than the argument?that the alternate judge in the case was not invited to some deliberations would be required. The type of?threshold?I have in mind might be met by the defence?counsel?if, for example, the deliberations were conducted so improperly that they?would constitute a miscarriage of justice because they could not?support the factual findings reached in the case.

And while I do have several thoughts on?some of?his other substantive remarks, I will today limit myself to the second?general observation that the shocking additional allegations that he made to the New African Magazine make it even more imperative now for the Appeals Chamber to give Taylor and the Sierra Leonean, Liberian and international public the chance to know what exactly happened, or did not happen, during the judicial deliberations in the SCSL?s most important trial.??At a minimum,?the Court should hear from Alternate Judge Sow. But, equally importantly given the extent of his? recent claims, they should also hear?from the other judges of Trial Chamber II and or perhaps even the legal officers that were assisting them. Though there is no defense request to call these other persons as witnesses, it seems to be a matter that would fall within the Appeals Chamber's inherent jurisdiction, so there is likely nothing to debar them from making such an order proprio motu.?The ball is literally now in the Appeals Chamber?s court to allow the Taylor Defense to call Sow as a witness. They might even, while they are at it, request or order these other mentioned categories of witnesses to appear before them to give evidence under oath. And although trials?ought as a?prima facie matter be in the?public space, especially on this issue, if there are fundamental concerns about certain information coming out, the chamber could first hear?the?evidence?in closed session?and later?make the complete records open to the public for transparency reasons.

Looking beyond the Taylor trial, as important as it is, some lawyers might bristle at the thought of starting down the path of permitting the defense in a criminal trial to proffer as a witness an alternate judge who sat on a case in order to lay bare to the public the secret and confidential chamber deliberations. It is in anticipation of such objections, and the fact that I am not entirely convinced based on their record that the SCSL Appeals Chamber will grant the Taylor defense motion, that I have instead advocated a third option: that is, the creation of an independent ad hoc fact finding commission comprised of leading jurists to get the bottom of the Alternate Judge Sow Affair.

While that is an admittedly unprecedented solution, with real, practical difficulties like where will the money come from (a not so unimportant question for the cash-strapped court that these days?subsists on subvention handouts from the UN because it cannot raise enough donations for its budget: see here, here, and?here), my view has been that unprecedented problems, like the unusual allegations?in the Taylor trial, do require unprecedented solutions.??And, in devising the solutions, so long as we are being guided by the?fundamental justice principles such as the importance of ensuring that the chamber respected the fair trial rights of the accused persons, a little bit of creativity would not be undesirable.?

Source: http://iclferment.blogspot.com/2013/01/alternate-judge-sow-tells-all-in.html

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