Earlier this week, the full judgment in the Charles Taylor case was issued. It runs to more than 2,500 pages – something that earns it a place in the Guinness Book of World Records – and I hope readers of the blog will understand if a detailed analysis is not yet forthcoming. But there is something puzzling on page 1 of the final judgment. The name of Judge Malik Sow is missing.
Judge Sow served throughout the trial as an Alternate Judge. Rule 16bis, entitled Alternate Judges, says ‘An alternate Judge … shall be present at each stage of the trial or appeal to which he or she has been designated.’ The sentencing hearing was part of the trial.
Judges at the Special Court for Sierra Leone are appointed either by the Secretary-General of the United Nations or by the Government of Sierra Leone. Judge Sow was appointed by the Secretary-General. He was present throughout the Trial and for the delivery of the judgment on 26 April 2012. His name appears on the summary of the judgment, which was distributed on 26 April 2012.
When the judgment was first issued in summary form, a few weeks ago, Judge Sow made a public objection which is discussed in an earlier post on the blog.
But apparently he was not present when the sentencing hearing took place last week. There is nothing on the website of the Court that I could find to explain this. I was told, informally, that the Plenary of the Court, composed of all of the judges, issued a decision removing him from case. This week's full judgment is supposed to include a 'Procedural History' as an annex, and surely that is where such a development must be explained. But it is missing from the full version of the judgment that was distributed.
Can readers of the blog assist in clarifying the procedure, and the legality, of removing a judge while a case is in progress?
Judge Sow still appears on the website as a judge of the Court. I don't believe he has been removed from office. In any case, I think that can only be done by the Secretary-General of the United Nations.
The Rules of Procedure and Evidence says a judge may not sit in a case ‘in which his impartiality might reasonably be doubted on any substantial ground’ (Rule 15). But from what I understand of the events in the courtroom on 26 April 2012 this is not the problem. Nothing Judge Sow said that day suggests a lack of impartiality.
It is also possible for a judge to be deemed ‘unfit to sit’ (Rule 15bis). It provides for a rather complex procedure involving referral by the President to the Council of Judges who then refer the matter to the Plenary Meeting which makes a recommendation to the body which appointed the judge. But this is really a procedure for removal from office, it seems. And presumably Judge Sow has not been removed from office. So should he not have been in the courtroom for the sentencing hearing, and should his name not have appeared on the judgment? How can a judge be part of a summary of a judgment yet absent from the judgment itself?There may be a good explanation for all of this. It should be public. It is not good for international justice that such develops as removal of a judge from a trial be cloaked in mystery.