Friday, 14 September 2012

More Mystery About the Charles Taylor Judgment (and its Appeal)

Yesterday, the Appeals Chamber of the Special Court for Sierra Leone issued a decision dismissing a challenge from the defence. The judges had been asked to recuse themselves from the appeal proceedings because of their involvement in a decision concerning the role of alternate Judge Sow in the Charles Taylor verdict.
This matter has been discussed in postings on the blog earlier this year. Briefly, after the Taylor verdict was read, alternate Judge Sow began issuing a statement in which he indicated his belief that guilt had not been proven beyond a reasonable doubt.  The microphone was turned off before he could finish. Subsequently, the plenary of judges met and recommended the suspension of Judge Sow. As a result, he did not participate in the sentencing ruling. His name mysteriously disappeared from the title page of the judgment in a manner reminiscent of Trotsky’s disappearance from old photos of the Soviet politburo.
Yesterday’s ruling is accompanied by a separate opinion from Judge George Gelaga King. Judge King writes of the plenary meeting that recommended the suspension of Judge Sow:
I objected to the procedural irregularity, which patently impinged on Justice Malick Sow’s right to be heard, stating that it was against basic principles of natural justice, and submitted that the Emergency Plenary could not deliberate on the matter and the views and recommendations of the Judges could not be sought when Justice Malick Sow had not been given an opportunity to repond to what were to all intents and purposes ‘new’ allegations against him. I ewarned the Teleconference that unless Justice Malick Sow was given time to reply to the sudden and scurrilous allegations made against him by Justice Julia Sebutinde, the refusal to give him time to respond was tantamount to ‘a perversion of justice’. I informed my colleagues that, accordingly, I was not, from that moment, taking any further part in the Emergency Plenary. I then walked out of the conference room and the Emergency Plenary.
Yesterday’s separate opinion by Judge King provides a very rare insight into the disciplinary activities of an international court. The various statutes of the different tribunals provide, in greater or lesser detail, for the possibility of a judge being subject to disciplinary proceedings by his or her peers. It is all a great mystery, because as a general rule such proceedings (if they exist) are confidential. Judge King’s opinion is hardly reassuring.
Recently, I attended the annual Chautauqua Prosecutors Conference where the Taylor case was discussed at length. I strongly expressed my concern about the Taylor judgment given the statement by Judge Sow after the verdict had been delivered. I was challenged by several speakers who complained about Judge Sow’s alleged improper behaviour, a matter that seems to me to be entirely secondary. It was also argued that because Judge Sow was an alternate judge, his opinion was not of any significance.
My concern was – and is – about reasonable doubts that arise when one of four judges who has heard the entire case says that he is not satisfied that guilt has been proven. If Judge Sow had sat in the gallery of the courtroom throughout the trial, as an observer for an NGO, and he had concluded that guilt had not been proven, we would certainly take his opinion seriously. We would want to know more about it. We would want to understand why he reached such a conclusion. We would not quibble about whether he had a vote, or whether he had behaved properly. What I cannot understand is the indifference of so many people who are concerned with international justice to something that inevitably raises doubts about the validity of the Taylor conviction.
The concerns I expressed at Chautauqua were met with the argument that international criminal tribunals do not require unanimity of the three judges. But can anybody cite an example where someone was sentenced to a lengthy term of imprisonment for crimes against humanity and war crimes by an international tribunal where one of the judges hearing the case voted to acquit because the facts had not been proven beyond a reasonable doubt?
I don’t believe such an example can be found. At the Chautauqua meeting, Judge Bankole Thompson, a veteran of the Special Court for Sierra Leone, challenged my position by noting that he had himself voted to acquit in one of the trials but that the accused had been convicted on the votes of the other two judges. Later, Judge Bankole Thompson conceded that this was not at all the same situation. His dissent was on a matter of law. He did not disagree with his colleagues about whether the facts had been proven.
Another participant cited the example of Judge Pal at the Tokyo Tribunal. But Judge Pal did not disagree about the facts either. He disagreed about a point of law.
Although nobody cited this, I know of one example of a dissent on facts similar to the Taylor verdict. At the Yugoslavia Tribunal, in the Galic case, Judge Nieto-Navio voted to acquit on one of the counts. He expressed surprise in his dissenting opinion that his own colleagues would not consider that the doubt of one judge was sufficient to create a reasonable doubt in all of them. But Judge Nieto-Navio voted to convict on other counts. He was not saying that Galic was innocent of all charges.
In Taylor, we seem to have a case where one of the four judges hearing the case favours a full acquittal based on failure to prove the facts. I believe this is unprecedented.
There have been many claims by those who defend the Taylor verdict about the insignificance of the role of the standby or alternate judge. It is of course quite true that such a judge does not vote. That does not mean there is no active role for the alternate judge. He or she does not stand in the wings, so to speak, like the understudy in a play or an opera.
At Nuremberg, there were four alternate judges. Not only did they attend the trial and participate actively in the deliberations, they also read portions of the judgment when it was delivered. At the Yugoslavia Tribunal there have been alternate judges. I cannot cite a decision on their role or status, but I have heard informally from other judges that the alternate judges are full participants in the judicial work of the Chambers.
My point is easily misunderstood. I am not arguing that Taylor is innocent. I am not arguing that Judge Sow had a right to vote on the verdict. I am not arguing that a dissent by one judge on a question of facts necessarily results in acquittal. But when an international court proposes to send a man to jail for fifty years, and one of four judges who has heard the entire case thinks the man should not even be convicted, this should concern us.
Judge Sow is a man of great integrity and a highly experienced jurist. If he were not, it is hard to imagine why the Secretary-General of the United Nations would have appointed him to the position.
His views matter. If they are not considered by the Appeals Chamber, they may well be taken into account by history. For the time being, we should insist on knowing more about them. As a starting point, the Appeals Chamber might request that Judge Sow submit his full opinion on the case so that it can be taken into account. This too would be unprecedented. But why not? Everything else about this case is.


Unknown said...

Dear Professor Schabas! I think I still could cite the case , where one judge (JP Lindholm) was not satisfied beyond reasonable doubt in the guilt of accused. This is ICTY case Simic et al and it concerns the accused Simo Zaric. So there is one precedent before Taylor. Just as a matter of fact. (But of cause the difference in sentence is great - 6 years for Zaric in comparison with 50 years for Taylor). As for the substance of your post, I fully agree with you that the behavior of majority judges is highly unproper. My respect to judge Sow who was brave enough to raise his voice against injustice. Dr. Mezyaev, Redactor-in-Cheif of "Kazan Journal of International Law", Russia.

M Bohlander said...

1) Procedural rules are an integral and often neglected part of the concept of the rule of law, especially when related to judicial conduct and ethics, and I 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 have been carefully balanced when the rules were made. One cannot just push them aside if in an individual case they lead to an unpalatable result. Substance without form is an invitation to arbitrariness.

2) 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.

3) The concern of judge Nieto-Navia who was flabbergasted that his own doubts did not lead the other judges to have the same doubts, is evidence of a fundamental misconception. It is a banal fact that the very notion of a majority verdict by necessity implies that the judges may disagree on reasonable doubt. 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.

4) 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 nebulous language could be interpreted as an accusation of perverting the course of justice by not deliberating (at all). Judge Sow seems to insinuate that the Trial Chamber did not deliberate on the verdict. Judge Sow was not entitled to a dissent. So he made his concerns known in the courtroom. The other communications in the disciplinary proceedings are confidential, apparently.

If he is alleging not just a difference of opinion (in which case he should have remained silent) 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 if he took the step of announcing such a thing in open court in such awkward words, with the risk of disciplinary consequences.

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.

5) 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.