Saturday, April 28, 2012

Judge Sow's struck statement & reflections on the Taylor judgment & the SCSL's legacies

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

THE HAGUE – As IntLawGrrls contributors, former Taylor trial monitors, and now academics based in The Hague, the two of us, Jennifer Easterday and Sara Kendall, welcome this opportunity to share some observations from the delivery of the historic verdict in the trial against Charles Taylor, former President of Liberia.
On a typically cold and windy Dutch spring day, we went to watch the proceedings taking place Thursday at the premises of the Special Tribunal for Lebanon in Leidschendam, an unassuming Hague suburb – the Special Court has been renting space there following its relocation from its original Hague home at the International Criminal Court.
The delivery of the judgment was well attended by current and former court personnel, representatives of civil society organizations such as the Open Society Justice Initiative and Human Rights Watch (including IntLawGrrl Elise Keppler), staff from the broader Hague-based tribunal community, legal advisers to diplomatic missions, academics, journalists, and family members of Charles Taylor.
Less present in the public gallery, however, were members of Sierra Leonean civil society organizations and other individuals who may have been more directly affected by the crimes that the Special Court was set up to adjudicate.
All four U.S. and British citizens who had served in the role of Prosecutor during the lifespan of the Special Court returned to The Hague for the reading. In the public gallery were Stephen J. Rapp – now U.S. Ambassador-at-Large for War Crimes Issues – and David Crane, the court’s first Prosecutor, whose interpretation of the Court’s mandate to try those ‘bearing the greatest responsibility’ for the crimes that occurred in Sierra Leone resulted in the indictment of thirteen individuals. Seated inside the courtroom were the current Prosecutor, Brenda Hollis, as well as past Prosecutor Desmond Da Silva.
All three defense counsel – Courtenay Griffiths, Terry Munyard, and Morris Anyah – and their legal assistants were present, as well.
Charles Taylor appeared calm and largely expressionless throughout the reading of the judgment, and he stood when prompted for the delivery of the verdict.
These lawyers, diplomats, academics, members of civil society and members of the press witnessed the reading of this judgment, which was interpreted largely in journalistic accounts as a success for the prosecution for the Chamber’s findings of guilt on all eleven counts. The prosecution’s failure to prove key modes of liability (such as joint criminal enterprise and command responsibility) remained largely absent from popular commentary.
The Taylor trial will certainly influence the legacies of the SCSL court – if we think of the court’s work in terms of multiple legacies (as noted by Viviane Dittrich of the London School of Economics at a recent conference in Pittsburgh on the Special Court), as opposed to a singular, dominant legacy.
The court’s impact on Sierra Leone and the broader West African region will undoubtedly be contested.
This was made clear by the dramatic conclusion to Wednesday’s proceedings.
Judge El Hadji Malik Sow (right), a Senegalese jurist who serves as alternate judge for Trial Chamber II, attempted to speak following the end of Presiding Judge Richard Lussick’s reading of the judgment. (photo credit) Those of us seated in the public gallery heard a few words from an unidentified speaker before the microphones were cut off, and through the glass we could hear him continuing to speak.
Shortly thereafter, what appeared to be a metal grate was lowered over the glass, so that we could not longer see into the courtroom. As people waited for press statements from the prosecution and the defense, a paper began to circulate with the statement from Judge Sow. Apparently the court stenographer had continued to type into the transcription program which appeared on the screens of those seated in the courtroom, and one of the legal assistants from the Taylor defense team copied the text and saved it out of concern that the Special Court would strike the judge’s statement from the official record (after receiving transcripts from yesterday’s proceedings, we can confirm that the comments were indeed struck from the record).
Judge Sow’s statement is copied here in its entirety from the disseminated sheet:
'The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the rules, when there is no deliberations, the only place 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, 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 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 heading for failure.'
Judge Sow was not technically entitled to speak in his role as alternate judge, yet his statement makes several claims that may be of interest to observers of the Special Court’s work. He points out that there were ‘no deliberations,’ suggesting communication issues among the judges of Trial Chamber II. He also notes the length of the trial – ‘we have been sitting for too long’ – which lasted 420 trial days, or nearly four years from the opening and closing of the case. Finally, he contested the Chamber’s findings that the Prosecution had sufficiently proven Taylor’s culpability beyond a reasonable doubt.
These comments also reflect the reportedly tense relationship between the judges of Trial Chamber II. Strained relations between Judge Sow and the other judges was revealed in March of last year, when Judge Julia Sebutinde (left) a Ugandan jurist who since has been elected to the International Court of Justice, refused to sit during disciplinary proceedings against Defense Counsel Courtenay Griffiths.
With two judges and an alternate present in that March 2011 courtroom, Judge Sow took issue with the suggestion that the bench was not properly constituted with three sitting judges. He exclaimed:
'Let me make this very clear. … I'm not here for decoration. I am a judge.'
The Presiding Judge at the time, Teresa Doherty of Ireland (left), was visibly upset by this comment. She concluded that in fact the bench was not properly constituted, and therefore adjourned the hearing. (photo credit)
Moreover, Judge Sow’s statement reflects the controversy and often intense discord between the parties in the Taylor trial.
These tensions were particularly acrimonious when focused on the credibility of evidence and witness testimony. The defense has frequently complained that the Office of the Prosecutor’s policy of providing financial support to witnesses undermines not only the credibility of their testimony, but also the legacy of the court as a whole.
Unfortunately, the full judgment has not yet been made available, which makes it impossible to determine which evidence was considered sufficient to meet the burden of proof or whether OTP witness payments were taken into consideration by the Trial Chamber in their credibility determinations.
Judge Sow’s comments reveal how the legacies of the SCSL in the wake of the trial’s conclusion remain contested. We will be following these observations from the event of the judgment’s delivery with more detailed commentary in the coming days on the:
► Positions of the parties in their final briefs; and
► Modes of liability advanced by the prosecution.


Diane Marie Amann said...

Thanks to Jennifer and Sara for bringing this account of Judge Sow's struck statement to our readers' attention -- 1st I'd heard of what seems like a noteworthy event.
This morning our colleague Bill Schabas also posts on this, at, and he links to Kirsty Sutherland's earlier post on same at International Criminal Law Bureau; see

Marjorie Florestal said...

Intlawgrrl Professor Fatou Camara notes:

As a Senegalese professor of Law I would like to testify to the fact that judge El Hadj MAlick Sow is a judge of repute in Senegal. He is very well known in the Senegalese judiciary for his integrity, fierce honesty and scrupulous attachment to principles. He is known for a man of courage who will always stand up for what he believes is right, no matter what. As a Senegalese citizen I am proud that judge Sow showed abroad the same hardcore qualities for which is known and respected in his home country. Thank you for bringing to our attention his statement exactly as it was written.

Diane Marie Amann said...

Update on Judge Sow's status here: