The Senegalese judge, Justice El Hadji Malick Sow, served as an alternate judge for Trial Chamber II of the Special Court of Sierra Leone that tried the former Liberian president, Charles Taylor. For the five years that the trial lasted, Justice Sow sat on the bench with three other “main” judges who presided over the trial in rotation. As alternate judge, Justice Sow’s job was to step in and act as a “main” judge whenever any of the three main judges was unable to sit. He says during the five years, he “worked harder than anybody else because I took it very seriously, for me it was a very important trial because I was the only judge from the West African sub-region, and as such, I couldn’t come back home, face my people, and tell them lies about what I didn’t see or cannot justify.”
Justice Sow’s conscientiousness and determination to apply the law as demanded by the Statutes of the Special Court and the international criminal justice system, made him unpopular with the other judges on the case, to the extent that they isolated him at the crucial “deliberations” stage of the trial where the guilt or innocence of the accused was decided by the judges.
It, therefore, came as no surprise that on 26 April 2012 when the three main judges announced their summary judgment (Taylor was found guilty and subsequently sentenced to 50 years imprisonment, of which he is appealing), Justice Sow read a Dissenting Opinion, saying: “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 serious deliberations, the only place left for me is in the courtroom.”
He continued: “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.”
It was a brave statement in the circumstances, but the other judges were not best pleased. As soon as Justice Sow started delivering his Dissenting Opinion, the three other judges stood up and walked out of the courtroom. Justice Sow’s microphone was subsequently cut, the curtains of the public gallery were drawn down, his statement was later removed from the official court record, and he was subsequently sanctioned by a majority of the judges of both the Trial and Appeals chambers of the Court for alleged “misconduct”.
As punishment, Justice Sow was ordered by the other judges “to refrain from further sitting in the proceedings pending a decision from the appointing authority [to whom the judges had asked to decide the further status of Justice Sow]”.
Since the judges’ decision in May 2012, Justice Sow has not had the opportunity to tell his side of the story to a mass audience. It is in this light that New African went to interview him in his Dakar home. The interview – conducted by our Senegalese correspondent Sheriff Bojang Jnr – is a real shocker! How a court established by international law, supposedly to execute justice in a fair manner, could behave in the way Justice Sow describes here, is utterly shocking. Please sit back, for this is a very serious matter!
Q: At a time when the world was watching the live footage of the deliberations of the long-awaited judgement in the Taylor trial, you entered a Dissenting Opinion to the Trial Chamber’s unanimous judgment. What went wrong that prompted you to take that step?
A: What went wrong was the secret plan concocted by the other judges of Trial Chamber II to reduce me to silence. Orders were given to the court officer to turn off my microphone, and to the technicians to pull down the curtains. Telling the Sierra Leonean people that the president of Liberia, the neighbouring country, is criminally responsible for the crimes committed in Sierra Leone is a serious matter. And the proof of that must be clear, convincing, and must be without much dispute.
What I said was that the prosecution did not prove beyond reasonable doubt the guilt of the accused. Also, it was a total surprise to me to hear that it was a unanimous decision because in each of the very few times we discussed anything, there were very different opinions. I was very surprised to see them coming up with this summary judgment talking about a unanimous decision. Even the drafts I received always changed. The other judges knew that I didn’t agree with the decision, that is why they wanted to force me to keep silent.
Q: In your Dissenting Opinion, you said: “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.” As an alternate judge, you were present throughout the entire five-year trial. At what stage did you realise that “this whole thing” was “headed for failure”?
A: The fundamental principles of International Criminal Law are contained in the statutes of the different courts and they are the same: All start with the presumption of innocence. Also, the only acceptable standard of proof is proof of guilt beyond reasonable doubt. The third principle is a general principle of criminal law as enunciated in the Latin expression In Dubio Pro Reo (doubt will benefit the accused). These principles were trampled underfoot in the Charles Taylor trial.
But before we go further, let me make this very clear: That when I spoke in court, I was no longer in a position of an alternate judge. I was a full judge, sitting there as a full judge. The one who shouldn’t have been there wasn’t me. One of the judges of the Trial Chamber was elected as a judge of the International Court of Justice (ICJ), that judge took the solemn declaration and was sitting as a judge in that jurisdiction, in the International Court of Justice.
As if nothing had happened, and concomitant to her sitting in the ICJ, that judge was kept in her former position as a judge of the Special Court of Sierra Leone (SCSL). I don’t believe that these two positions are compatible. If being elected in a different court doesn’t render a judge unable to continue sitting in the SCSL, it must be explained when an alternate judge is eligible to sit as a full judge.
I went through unimaginable difficulties to put the issue of the interpretation of Article 12 of the Statute of the Court, and of Rule 16 on the agenda of the plenary meeting of the judges held in September 2008. My request was rejected by the same judges who ferociously attacked me in what they called a disciplinary procedure. The minutes of the two plenary meetings are available.
Q: The argument is whether you had a mandate to express such an opinion in public as you did.
A: I don’t know why nobody talks of Article 18 of the Statute of the Special Court, and Rule 88 of the Rules of Procedure and Evidence which are the only specific provisions talking about the Judgment and opinions accompanying the Judgment. Article 18 of the Statute says clearly that: “The Judgment shall be rendered by a majority of the judges of the Trial Chamber or of the Appeals Chamber, and shall be delivered in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.” Then Rule 88 of the Rules of Procedure and Evidence provides very clearly that: “The Judgment shall be rendered by a majority of the judges. It shall be accompanied by a reasoned opinion in writing. Separate or dissenting opinions may be appended.” Also, Rule 16Bis(c) states that “an alternate judge shall be present during the deliberations of the Trial Chamber or the Appeals Chamber to which he or she has been designated, but shall not be entitled to vote thereat.” How can one then say that during “deliberations” an alternate judge does not have the right to make an opinion and thus cannot express his opinion?
It is a general principle of law that exclusions and limitations must be expressly provided for. Here it’s not about voting at deliberations. It’s about my opinion about this trial, and unlike Rule 16Bis(c) there is no limitation, no ban or exclusion in the superior norm which is the Statute of the Court, nor in Rule 88 for the expression of opinions on the Judgment.
Q: You alleged in your statement that there were “no serious deliberations” before the Judgment was pronounced. Did you mean there were deliberations but that they were not serious enough to justify a guilty verdict?
A: I have said it, and I wait for the proof of the contrary. The president of the Court came to The Hague and had a meeting with the judges. He knew about this issue. I did mention during that meeting, in the presence of the other judges and the president of the Court, that I did not know when, where, and how it was decided that the drafting of the different parts of the Judgment will be divided between the three other judges. I was told then that other meetings will be organised later to discuss the drafts but that never happened.
All the judges of the Court knew about this problem. It is when we reached the most important part of the deliberations – which was the criminal responsibility of the accused – that the other judges started to hold meetings, but not in the deliberation rooms, but in their offices. And I wasn’t called to those meetings.
But I knew of those meetings because the legal officers told me about them. That’s how I discovered that they were hiding to meet, and I did complain in writing. I did not hear much about why all the legal officers who attended the trial, except one, left before the Decision was written. Why did all these people go? It is true that I was forwarded drafts of the Judgment but not all of them. I received different versions about the same issues, and in the end it was impossible to know who gave the instructions to draft one way or the other, and which draft was the final one.
Q: So why do you think these legal officers who started the trial didn’t stay till the end?
A: Maybe you should go and ask them if they are available. Maybe they will talk. I’m not the only one who found that the charges against the accused were not proved beyond reasonable doubt by the prosecution. From the drafts they prepared, it appeared that they didn’t have the same opinion as the judges.
During the disciplinary procedure against me after my Dissenting Opinion, I was accused of giving counter instructions to the legal officers. The one who made the affirmation knew very well that it was a lie. These very hard working people are lawyers too. They knew everything. They had seen all the evidence produced by the parties. I don’t think that they were convinced by the evidence produced by the prosecution.
Q: Do you agree, as Taylor’s Appeal Defence has put it, that “deliberations after the close of proceedings are the most solemn and significant aspect of the decision-making process of a court whereby the guilt or innocence of the accused is discussed in light of the relevant evidence and law, and the fate of the accused is finally decided in terms of both guilt and sentence. The importance of deliberations therefore is not only a requirement of law and procedure but is also a fundamental aspect of a fair trial”?
A: When the totality of the evidence is gathered, closing arguments presented, the judges declare solemnly the hearing closed and they retire in private for deliberations. It is the segment of the trial where judges meet in secrecy and confidentiality to weigh the evidence, and to determine guilt or innocence.
Deliberations are the crucial stage where judges must express their own convictions and positions, and explain why. That’s where judges express opinions about the trial. The Appeal Defence is right to put it that way. It’s the crucial stage, the heart of the trial. It is where you have the totality of the evidence reviewed, analysed, and weighed against the law and the facts.
Q: So you agree that a failure of deliberations constitutes a denial of the fair trial rights of an accused, and has implications about the conduct of judges?
A: Fairness is about a trial in all its different segments. Let me first come back to your earlier question when you asked about principles. It’s like a triangle sustaining the whole system. It starts with the presumption of innocence. When the accused is not presumed innocent at the beginning, there is a problem because the trial is already biased. From this presumption of innocence, you move to find if guilt has been proved beyond reasonable doubt. It goes to the quality, quantity, and the pertinence of the evidence to establish guilt or innocence. It’s like a scale. The evidence produced by the parties should reach this level of quasi-certainty leading the judge to be firmly convinced of the accused’s guilt.
But failure of proving guilt beyond reasonable doubt, the only conclusion is to declare the accused not guilty. “In Dubio Pro Reo”. These are the basic and intangible principles of any criminal trial. Now let people see for themselves from the Judgment if these principles were respected in this trial. When comments like “why is Issa Sesay coming to testify… why is this man coming to testify? To let the accused of the hook?”, you may ask what the presumption of innocence means for those who said it. Assessing the general credibility of specific witnesses, why did the other judges choose only Issa Sesay and DCT 008 from the 21 witnesses called by the defence?
Q: You mean the presumption of innocence until proven guilty was never observed in this trial?
A: The only important document is now the Judgment where the reasoning is supposed to be, so let everyone read and make their own conclusions. I stand by what I have said in the courtroom.
Q: In all your years as a judge, have you come across a case as big as Charles Taylor’s where “no serious deliberations” took place before judgment was pronounced?
A: No. I have never participated in any case like this one. This is the first time. But before I joined this Court, I was presiding over the criminal chamber of the Court of Appeals of Dakar. We have specific dates for deliberations and a room for deliberations. And every single judge would say what he thought about any case submitted to the chamber.
Q: And why do you think “no serious deliberations” took place in Taylor’s case? What was the rationale?
A: I don’t know. Those who were hiding to meet and hiding drafts of the Judgment should answer that question. At the pre-trial stage, the first lawyer of the accused said very clearly that the critical question in the case was not so much whether the crimes in Sierra Leone were indeed committed, but whether Mr Taylor was criminally responsible for them.
And let me tell you, if you take from the evidence received in the trial the part on Liberia, you don’t have much left. There were lots of confusions. It started from the initial stage – the indictment. There was a first indictment which was the original one. Then followed the first amended indictment. And finally, the third one, which is the second amended indictment. There is nothing wrong about that. But it gives an indication about the joint criminal enterprise mode of responsibility. The only question was just one – how to prove the link between Charles Taylor and the crimes committed in Sierra Leone, and not in Liberia. You asked me at the beginning why I entered my Dissenting Opinion. It’s because I couldn’t be indulgent in the face of the countless contradictions, lies deceptions and manipulations in this trial, and conclude that the accused was guilty beyond reasonable doubt of the crimes he was charged with. You cannot conclude that there was no doubt in your mind when you see all this money spent on witnesses, and part of the money you didn’t know the origin of. I didn’t know where it came from.
Q: Were the other judges aware of your Dissenting Opinion plans before you made them?
A: They knew from the beginning that I didn’t agree with their own interpretations of the law, and their appreciation of the evidence. I did not send to the other judges my written opinion. I have no obligation to do that. Why were they expecting me to show them my Dissenting Opinion?
What I said about the system is that international justice cannot cope and put up with the very low standard of proof applied in this case. International justice cannot be based on rumours. These are mass crimes. This is where we must have the highest standard of proof. It’s about proving the guilt of the accused beyond reasonable doubt. But they didn’t even reach the lowest standard of proof.
Most importantly, the accused came with very official papers, with witnesses who were at the frontline, witnesses who were main actors of this whole conflict. How can you compare these witnesses with those people who didn’t get even close to the scene? The prosecution’s case by itself is so insufficient, so unreliable. It’s about people contradicting themselves, people denying what they had said in previous statements.
Q: As soon as you started making your Dissenting Opinion, the three judges walked out of the room, the court technicians turned off your microphone and brought down the curtains of the public gallery. Would you say that was a coincidence or a calculated move to silence you?
A: It was a very bad calculation. Their anxiety to leave the courtroom is an illustration of their plans to reduce me to silence, but the plan failed lamentably. If it had been a coincidence, there would have been some confusion in the courtroom but all went very smoothly. Except that the one who recorded what I said was not warned in advance.
The presiding judge read his summary Judgment for two hours and then declared adjournment without even giving anyone the possibility to say a word. Then in a concerted and very coordinated move, the other judges stood up and walked ostentatiously out of Court. They were still in the courtroom when I mentioned that I had something to say, and if they did not know what I was going to say as they claimed later, there would have been no reason for them to act the way they did.
What were they afraid of? They were afraid of something else and that’s why they walked away. They asked the court officer to cut my microphone. They asked the technicians to pull down the curtains, to isolate me. They wanted to make a fool of me but they made fools of themselves. And what was meant to be my public humiliation became their lack of not just respect but also intelligence.
Q: What went on behind the scenes after your Dissenting Opinion? How did the other judges react?
A: Let’s call this whole thing pure and simple wickedness. You see, I prefer to let them live with their own consciences. It was pure wickedness. My name was removed from the cover of the Judgment, and my dissenting statement was removed from the transcript. Their claim that I wanted to discredit the Court is just part of the same enterprise of annihilation. You may have seen the decision of the Appeals Chamber and the later Dissenting Opinion of Justice George Gelaga King who did not agree with the Appeals Chamber’s disciplinary decision against me [in May 2012].
Let me read to you part of what Justice King said in a “separate opinion” he wrote on 13 September 2012 about his Dissenting Opinion of May 2012. He said: “At the start of the deliberations [of the disciplinary action against Justice Sow] on the first day of the Emergency Plenary, ie 7 May 2012, Justice Julia Sebutinde of Trial Chamber II read a written 6-page statement on behalf of Trial Chamber II, which purported to be a complaint against Justice Malick Sow. The Appeals Chamber judges of the Emergency Plenary were only appraised of this statement at the time it was read out by Justice Sebutinde, who was not the presiding judge of Trial Chamber II.
“A fortiori, Justice Malick Sow, against whom the allegations in the statement were made, was not given prior notice of it, and, consequently, had not been given the opportunity to respond. I [Justice King] 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 that the views and recommendations of the judges could not be sought when Justice Malick Sow had not been given an opportunity to respond to what were, to all intents and purposes, ‘new’ allegations against him.
“I warned 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.”
Yes, it was a perversion of justice. I have a lot of respect and admiration for Justice George Gelaga King. He is a man of principle and a great judge. The minutes of the first day of the disciplinary meeting are nowhere to be seen, they don’t exist anymore. It is easy to hide behind confidentiality or secrecy to slander me, to insult me. It’s about my integrity. It’s about my honour, and I shall respond. When the system is not functioning we must say it. It is the duty of judges to do so. If the judges don’t say it, who will say it? If judges don’t tell the truth, who will tell the truth?
Q: If you had a vote as a judge, do you think your action could have at least changed the outcome of the trial, or was it merely to discredit the Court as alleged by your accusers?
A: I would never have accepted this appointment and I would not have advocated, as technical advisor to the minister of justice, then the minister of foreign affairs, of Senegal for the creation of the International Court of Justice if I did not believe in international justice. My sole interest is still to protect the fundamental principles of justice.
It was important to have the record rectified in the Taylor trial. It had nothing to do with the image of the Court or the system, but only justice and principles. After all, this was not the first time a judge was making observations about the law or the judicial system. The outcome of the Taylor trial would have been the same because there were already two judges who had decided that the accused was guilty. I would have remained the minority opinion.
Q: There is a feeling in some quarters, especially in Liberia, that Taylor’s arrest, indictment and conviction were the work of powerful Western governments. Have you felt there was any conspiracy theory in the whole affair?
A: You see, judges don’t get into these considerations. Judges are bound by the evidence. People can say whatever they want. If the guilt of the accused was proved beyond reasonable doubt, I would have been the first one to say it. I did not see the proof of guilt. I am not getting into this conspiracy theory issue because I have no proof of it.
Q: But did the Bench, including you, ever discuss the possibility of the Court being used by powerful Western governments to settle a score with Taylor?
A: I wouldn’t have participated in this kind of discussions. If they took place, I wasn’t there. I don’t know.
Q: If you were one of the three main judges with a right to vote at the deliberations stage, what would you have done differently?
A: I have said it earlier. It’s about the evidence. You cannot have such a trial and base your decision on the questionable evidence that we have received in this trial. Ask around, ask those who have read the 2,500-page Judgment. This is a record. This is unprecedented. We have two thousand five hundred pages just to show that the accused was only aiding and abetting, and planning the crimes.
Let people read the parts of the Decision on the criminal responsibility of the accused because the judges have expressed their opinions in their Decision. People should concentrate on the Decision and read it and see for themselves if it is compatible with the evidence they heard in court. Let’s take for instance the Naomi Campbell issue which was the most sensational part of Taylor’s trial. Everybody heard her testimony. Who can conclude that the accused gave diamonds to Naomi Campbell? The diamonds were still available to be tested for the determination of their origin.
Q: As far as you are concerned, should Taylor have been convicted of a much lesser crime and sentenced to a much lesser prison term, or should he have been freed?
A: The standard of proof is proof beyond reasonable doubt. It’s a very high level of proof. This is the essence of criminal justice. As a judge you must be firmly convinced that what you are doing is the right thing. A reasonable person reading the Judgment should also be convinced that the accused is guilty. You must also convince the accused that he is guilty. Even the accused must be convinced that he is guilty of the crimes. I am unable to agree with the reasoning, the rationale, and the standard of proof. Even in domestic jurisdictions, such a standard of proof is unacceptable.
Q: So what you are saying is that Taylor should have walked out a free man?
A: He should have been a free man at this stage [of the trial, pending appeal] because I haven’t seen the proof of guilt of the accused. This is what I have said. I’m a professional judge and I’m bound by the evidence. I have serious doubts about the evidence. The prosecution case is altogether very unsatisfactory, inherently disharmonious, and filled with too many confusions and inaccuracies; and this, to my opinion, is fatal to the prosecution’s case. If you don’t see the truth, at least you must see the lies. I have seen too many lies, too many deceptions, and I haven’t seen any proof of guilt of this accused.
Q: From what you saw of the Special Court of Sierra Leone during the five years you sat on the bench, are the ad hoc courts of the international criminal system worth the money spent on them – in terms of dispensing proper justice?
A: Good justice is worth any sacrifice. People have to read the Judgment of the Taylor case to know how this matter was settled by the other judges. We know that money can be spent on witnesses but for acceptable reasons. We understand protection of witnesses. We understand that justice is about means, money. But it was not only about the role money played in this trial, it was not only money because we also saw offers of grace, we saw witnesses being taken from prison to come and testify, people being promised to be relocated. We have seen all that. Were the witnesses testifying truthfully or were they influenced by the money?
I saw, in the evidence presented, too many contradictions and lies, and many witnesses denied what was attributed to them. Were they influenced by the payments they received?
The defence brought up the issue of the origin of some of the money spent in this trial, and produced documents to show that in many instances there were no explanations for the money spent on witnesses. It may bring at least suspicion or doubt. And when you see such things, you must ask yourself what role did money play in this trial? And this is a very critical issue in this trial.
We do have a management committee that can see how and when the money came in, because I think it was a problem in this trial. How did we get the money from donors and from other countries just to finish the trial? As a judge, I am not concerned about this issue. I’m concerned with the evidence, what is the evidence, what is the truth? And when you see it, you must say it. This is the oath you take as a judge, and you must do it without any fear.
Before the trial started, people already had their own opinions about it. During the trial, people had their own opinions. After the trial, people still have their own opinions. And people will always have their own opinions on the law and on the system, and also on the innocence and the guilt of the accused. As for a judge who attended this trial for five good years, and who worked harder than anyone else – I worked harder than anybody else because I took it very seriously – for me, it was a very important trial because I was the only judge from the West African sub-region, and as such, I couldn’t come back home, face my people, and tell them lies about what I didn’t see, or cannot justify.