Another week, another twist at the Charles Taylor trial.
Just ten days ago, the proceedings hit an unexpected impasse when Taylor’s lead defense counsel, Courtenay Griffiths, learned that his final brief—which had been delivered late—would not be accepted by the court. Griffiths declared that, absent the final brief, he did not see any further role in the case for himself or for his client. Then, in front of a host of international media, he walked out of the courtroom.
For his actions, the judges chose to subject Griffiths to a disciplinary hearing and set the date for Friday, February 25.
But then came the newest surprise—this time from the bench. As the parties gathered for the Griffiths hearing, there was a new notable absence. One of the trial’s three judges, Justice Julia Sebutinde, had opted out.
Justice Sebutinde’s dissatisfaction with the move to hold a disciplinary hearing was no secret. She had dissented from the order requiring Griffiths to apologize or face sanction. When the hearing was convened, she went a step further, stating that as a matter of principle she could not take part in the proceedings.
In a letter read by the presiding judge of the Trial Chamber, Justice Teresa Doherty, Justice Sebutinde wrote that “in view of the recent developments in the Trial Chamber, and consistent with my earlier views and opinion on this matter, both in Chamber and on the bench wherein I dissented from the directive to lead counsel, I will on principle not attend Friday's hearing."
In addition to making clear her position on the Griffiths hearing, Justice Sebutinde’s message underscored that “recent developments in the Trial Chamber” have not been smooth. In the public gallery on Friday there was discussion about the body language displayed by the judges in recent weeks and the hints it offered about disagreement on many issues.
Nor was the drama finished for the day. With Justice Sebutinde absent, eyes turned to the alternate judge, Justice El Hadjj Malick Sow. But when defense lawyers suggested that Justice Sow be allowed to participate in the proceedings, the Senegalese judge did not wait for the presiding judge to comment before bursting out.
“Let me make this very clear,” Justice Sow said.
This bench is regularly composed with three judges sitting, as it shows. Two judges cannot sign decisions. When the bench is sitting, it's sitting with three judges, not two judges…I'm not here for decoration. I am a judge…I don't know how people can think that two judges - I don't know where in this world you will see two judges sitting. It's not possible. This bench is regularly composed with three judges…No matter how parties will look at it, it shows and it's apparent that this bench is composed with three judges. We are three judges sitting.
The words of a man who believes that he has been sidelined by his colleagues.
The guidelines on the alternate judge’s role are spelled out in Rule 16 of the Rules of Procedure and Evidence of the Court. The rule reads, “If a Judge is, for any reason, unable to sit in a proceeding, trial or appeal which has not yet been heard but has been scheduled, the President may designate an alternate Judge.”
Rule 16 also states, “The alternate Judge may perform such other functions within the Trial Chamber or Appeals Chamber as the presiding Judge in consultation with the other judges of the Chamber may deem necessary.”
Justice Doherty, as she adjourned the proceedings, invoked the rule but found it did not apply. “The Articles governing the composition of this Court and the Trial Chamber mandate that it is to be composed of three judges,” she said. “This is not a situation where Rule 16 applies. Accordingly, in our view, this Trial Chamber is not properly constituted and we consider we have no alternative but to adjourn this hearing today.”
The day’s developments leave several unanswered questions, most notably whether Justice Sow should have been allowed to take part in the hearings since Justice Sebutinde was “unable to sit in a proceeding.” Or, instead, if his participation falls within the ambit of when “the Presiding Judge in consultation with the other judges…may deem necessary.”
These are all issues for the judges themselves to determine. What is important to note at this stage is that it is, in fact, very common for judges in all tribunals to have disagreements. And disagreements do not necessarily suggest any malfunction in the handling of the particular case. But judges should also be mindful that the eyes of the world are on them and that they carry the enormous responsibility of upholding the dignity and integrity of the judicial process. So, it is essential to make sure that any disagreements that arise not overshadow the substance of the case itself.
In this case, the overriding importance of guiding the trial to a conclusion could not be more clear. Taylor, the former president of Liberia, is on trial for allegedly supporting rebel forces in neighboring Sierra Leone during the country’s 11 year civil war. The trial is by now three years old and, before the recent complications, was set to enter its final stages. The Open Society Justice Initiative continues to track developments in the case on its monitoring site.
Prosecutors have brought evidence about how rebel forces in Sierra Leone marauded across the country, hacking off limbs, killing civilians and committing heinous crimes, including sexual violence. They have argued that these crimes would not have been possible without Taylor’s support.
The defense team has argued that Taylor’s role has been misunderstood—that he was a peacemaker, whose only involvement in Sierra Leone was in an effort to bring peace. They argue that he is on trial because Western countries wanted to see him out of Liberia.
Both sides have labored to bring the case to this advanced stage, with the aim of bringing this trial to a conclusion—to a final verdict on whether Taylor is guilty or innocent of the charges against him.
In the interests of the victims of the conflict in Sierra Leone, of the brave men and women who traveled to The Hague to testify for both prosecution and defense, of Taylor’s fair trial rights as an accused, and of the contribution that the Special Court should make toward preventing impunity and ensuring accountability for the most serious crimes, it is crucial to bring the trial to a satisfactory end.