Before we get to Michael's comments, however, I want to point out that I must have been misunderstood.
I am not particularly concerned about whether or not Judge Sow (or his colleagues) behaved properly. The apparent attempt to remove him from office seems a disproportionate response, in any case, although it seems largely theoretical given the fact that the work of the Trial Chamber is finished. Probably it is not a good idea for judges to be left to discipline themselves. I don't think most national judicial systems do this, no doubt for good reason.
It is of course a fact that two judges are enough to convict, although the examples where one of the three judges believes guilt is not proven beyond a reasonable doubt are extremely rare. Perhaps it is not a good idea to allow two out of three judges to convict, at least on issues of fact. If one out of three (or one out of four) professional judges, elected at the highest level, has reasonable doubts about the guilt of an individual, perhaps that should be enough to make a verdict insecure. That is my only concern here.
Here is Michael's comment:
Unlike Dr Mezyaev I cannot support your criticisms. What Judge Sow did was unprofessional and may very well constitute judicial misconduct of a grave nature.
There are a few points I’d like to make:
Procedure and rule of law:
Procedural rules and their observance are an integral and often neglected part of the concept of the rule of law. A former ICTY judge once likened their relationship to the task of the court as that of the handmaiden, not the mistress. Such a view can only have come from a common law judge, but I digress. These rules have to do with a core area of the rule of law, namely judicial conduct and ethics, and I thus fail to see how one can view this as secondary. One should always start by assuming that issues such as the individual judge’s right to state their view and the need for an effective functioning of the administration of justice have been carefully balanced when the rules were made. One cannot just push them aside if in an individual case they lead to a result unpalatable to an observer.
Judge Sow was a non-activated alternate judge. He was not called to decide upon the case. He did thus not even have the right to declare a dissenting opinion. His views were and are in law irrelevant.
How do we know, as Dr Mezyaev says, that Judge Sow spoke out “against injustice”? Have we seen the evidence in the case ourselves? Were we present at the deliberations or did we witness their absence? Is it not close to arrogance to second-guess the majority’s view and label it with such strong words from the armchair view?
Majority vote in collegiate panels:
The concern of the other ICTY judge you mention who was apparently flabbergasted that his own doubts did not lead the other judges to have the same doubts, is evidence of a fundamental misconception of the workings of collegiate panels. It is a banal fact that the very notion of a majority verdict by necessity implies that the judges may disagree on reasonable doubt. In my own 13 years of judicial experience I encountered such situations from time to time. Naturally, being outvoted is not a pleasant experience, especially if one feels strongly about a point, but unless your legal system allows you to write a dissent, that must be the end of it.
What Judge Sow actually said was this:
"The only moment where a Judge can express his opinion, is during the deliberations or in the courtroom, and pursuant to the Rules, where there is no 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." (public Annex A to the Defence Motion of 19 July 2012).
Taken at its highest, this could be interpreted as an accusation of the majority of perverting the course of justice by not deliberating (at all). That apparently is the thrust of the defence motion.
Use for the defence
Judge Sow’s aperçus from the bench seem to insinuate that the Trial Chamber did not deliberate on the verdict. Deliberations are secret. Disagreeing judges can write dissents. Judge Sow was not entitled to a dissent because he was not called upon to decide the verdict. So he made his concerns known in the courtroom, albeit rather nebulously. The other communications in the disciplinary proceedings, including the email from Judge Sow responding to the charges, are confidential, apparently.
If he is alleging not just a difference of opinion (in which case he should have remained silent in the first place) but an absence of deliberations and as such a fundamental breach of procedure and possibly a perversion of the course of justice, one wonders why he did not go public with an explicit statement to the press etc. if he took the step of announcing such a thing in open court in such awkward words, with the obvious risk of disciplinary consequences. He might even be justified in doing so under general aspects of the necessity defence, yet that would need a lot more specification of his insinuated allegations.
The defence apparently pins its hopes on those five words “where there is no deliberations”. Unless Judge Sow supports this with more specific and testable allegations, it seems a bit difficult to believe that such a voluminous judgment was arrived at without any deliberation. Judge Sow’s comment may just mean no more than that he felt aggrieved that his views were not shared by the others or possibly given short shrift because he was a non-activated alternate judge.
I am also somewhat bemused by the fact that the defence accepts that the judges are not actually biased, but then proceeds to base its disqualification motion on the “appearance of bias” gound. By their own admission of absence of actual bias they destroy the ground based on mere appearance. Logically, the latter is normally meant to be used if one suspects bias even if one cannot prove it, it is then that an appearance based on a fair-minded informed observer is sufficient. The disqualification procedure is, however, not an end in and of itself: If there is no actual bias, as the defence admits, then such a motion should not be filed; it is frivolous.