Friday, 25 May 2012

What Happened to Judge Sow?

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. 

1 comment:

Yvonne Nic Dhiarmada said...

From the sentencing hearing transcript:
"Before proceeding today, it gives us no pleasure to have to place on record some explanation for the extraordinary situation which occurred at the end of the previous sitting of the Trial Chamber on 26th of April, 2012, on which date the Trial Chamber delivered its summary judgement.
On that date, at the conclusion of the proceedings, the Alternate Judge, without any notice to the Trial Chamber, proceeded to deliver his own opinions from the bench on the judgement that had just been delivered on these proceedings and on the Special Court itself. What the Alternate Judge did was in contravention of the agreement, the Statute, and the Rules which govern this Court and amounted to misconduct. The purpose of attaching an Alternate Judge to a Trial Chamber is that he can be designated to replace a sitting Judge if that Judge is unable to continue sitting. See Article 12 of the Statute. No such designation has been made in the present case. Further, during the proceedings, the Alternate Judge may pose questions through the Presiding Judge, but there is no other entitlement for an Alternate Judge to speak during court
proceedings. See Rule 16 bis (B). Moreover, an Alternate Judge not have any say in decisions of the Trial Chamber. He is obliged to be present during deliberations off the Trial Chamber, but he is not entitled a vote thereat. See Rule 16 bis (C). It follows that it was wrong for the Alternate Judge, who has not been designated to replace a sitting Judge, to offer an opinion, whether dissenting or concurring, on a judgement of Trial

The behaviour of Judge Sow was referred by the Council of Judges to a plenary meeting of the Judges of the Special Court. We three Trial Chamber Judges abstained from voting at that plenary.
I will now read onto the record the resolution of the plenary.

'Resolution on complaint by Trial Chamber II against Justice Malick Sow. The Judges of the Special Court for Sierra Leone sitting on the 7th and 10th of May, 2012, in the 17th plenary of Judges, pursuant to Rule 15 bis (B) of the Rules of Procedure of Evidence of the Special Court which mandates the Council of Judges who refer an allegation of unfitness of a Judge to sit to the plenary if it determines that, one, the allegation is of a serious nature, and two, that there appears to be a substantial basis for same.
Pursuant also to Rule 24(iii) of the Rules, which provides that the Judges shall meet in plenary to decide upon matters relating to the internal functioning of the Chambers and the Special Court, seized of the complaint by the Judges of Trial Chamber II, dated 26th of April, 2012, against Justice Malick Sow, Alternate Judge, considering the response of Justice Malick Sow, dated the 1st of May, 2012, to the complaint, having also considered the views and recommendations of the Judges on the matter and the response of Justice Malick Sow to those views
pursuant to Rule 15 bis (C) have reached the following conclusions:

1. The plenary declares that Justice Malick Sow's behaviour in court on the 26th of April, 2012, amounts to misconduct rendering him unfit to sit as an Alternate Judge of the Special Court.
2. The plenary recommends to the appointing authority pursuant to Rule 15 bis (B) to decide upon the further status of Justice Malick Sow.
3. Pursuant to Rule 24(iii), the plenary directs Justice Malick Sow to refrain from further sitting in the proceedings pending a decision from the appointing authority.

Done in Freetown, Sierra Leone, this 10th day of May, 2012, for and on behalf of the plenary, signed by the President Justice
Jon Kamanda.'"