'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.'– Our colleague William A. Schabas (left), in a post on his blog, in which he details the latest episode in the saga that began moments after a Trial Chamber of the Special Court for Sierra Leone had announced its conviction of former Liberian President Charles Taylor: that chamber's alternate judge, El Hadji Malik Sow (right) of Senegal, attempted to give voice to his own concerns with the verdict, and his microphone was cut off. Since then, Judge Sow's been subjected to internal disciplinary proceedings, a consequence of which was his absence from the sentencing hearing. (IntLawGrrls' posts on these events here and here.)
This past Thursday, an Appeals Chamber of the Special Court rejected a defense motion to disqualify judges from taking part in Taylor's appeal of his conviction and 50-year sentence, for the reason that those judges had participated in postconviction proceedings involving Judge Sow. That Appeals Chamber panel comprised 1 alternate and 5 permanent judges. Notably, as Schabas reports, 1 of those permanent members of the Appeals Chamber, Judge Gelaga King (right) of Sierra Leone, filed a separate decision recording his objections to a proceeding against Judge Sow, and further reporting that he, Judge King, had "walked out" of a judges' meeting rather than "taking any further part." Schabas' post considers this internal turmoil, yet concentrates his commentary on the concern stated in the quote with which this quote begins: that for the 1st time in the known history of international criminal justice, conviction appears to rest on less than unanimity of all judges who evaluated guilt or innocence in light of the factual evidence presented to them at trial. Referring to Sow's cut-off discourse, Schabas argues:
'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.'