Seems that the treatment of the alternate judge by the judges of the Trial Chamber II and his reaction to it are far from getting better.
The latest incident happened at the disqualification hearing of the Emergency Plenary initiated by the Trial Chamber against the alternate judge Malick Sow.
The fellow judges actually “ambushed” him at the hearing. According to the Appeals Chamber’s judge George Gelaga King, judge Malick Sow was not given prior notice of and had not been given the opportunity to respond to “sudden and scurrilous allegations made against him.”
This, in the judge King view, “was tantamount to ‘a perversion of justice.’”
It was the public statement made by the alternate judge Malick Sow immediately after the presiding judge completed reading the judgement, that drew attention of the public and triggered the disqualification procedure.
That statement comes down to three points:
- there was no deliberation on the judgement (or, at least he was not aware of such deliberation);
- the guilt of the accused was not “proved beyond reasonable doubt”; and
- the “whole system is not consistent with the values of international criminal justice, and ... is under grave danger of just losing all credibility...”
Indeed, this was not the first time that the judges expressed their frustration over the unfairness, in their view, of the proceedings and practices in international courts. One may recall, for instance, strong statements made by some ICTY judges in their separate opinions:
As to the alternate judge’s not been involved in the deliberation (if there was one, formal or informal), one may recall that his statement was preceded by another confrontation in the courtroom.
Last year, at one of the hearings where only two judges and the alternate judge were present, the presiding judge adjourned the hearing as the Chamber, according to him, was not “properly constituted” (composed of two judges instead of three).
Reaction of the alternate judge was rather strong:
Indeed, under Rule 16(B) of the SCSL Rules, an alternate judge may replace a judge only if that judge is unable to continue sitting for more than five days. In that instance the judge was not available only for that particular hearing.
Apparently it is the treatment of the alternate judge by his fellow judges and his dissatisfaction of his role in the Chamber that contributed to the judge’s frustration.
Pursuant to Rule 16 bis of the SCSL Rules, the role of the alternate judge in the proceedings is rather passive:
- he or she shall be present at the trial;
- may, through the presiding judge, pose questions which are necessary for his understanding of the trial proceedings;
- shall be present during the deliberations of the Trial Chamber but shall not be entitled to vote thereat.
This Rule is similar to Rule 15 ter of the ICTY Rules. However, Rule 16 bis does envisage a possibility for a more active role of the alternate judge. According to the Rule, he or she may perform such other functions as the presiding judge in consultation with the other judges of the Chamber may deem necessary.
It is noteworthy that, as prof. William A. Schabas wrote on his blog, in the ICTY, the reserve judges fully participate in the judicial work of the Chambers.
The latest incident happened at the disqualification hearing of the Emergency Plenary initiated by the Trial Chamber against the alternate judge Malick Sow.
The fellow judges actually “ambushed” him at the hearing. According to the Appeals Chamber’s judge George Gelaga King, judge Malick Sow was not given prior notice of and had not been given the opportunity to respond to “sudden and scurrilous allegations made against him.”
This, in the judge King view, “was tantamount to ‘a perversion of justice.’”
It was the public statement made by the alternate judge Malick Sow immediately after the presiding judge completed reading the judgement, that drew attention of the public and triggered the disqualification procedure.
That statement comes down to three points:
- there was no deliberation on the judgement (or, at least he was not aware of such deliberation);
- the guilt of the accused was not “proved beyond reasonable doubt”; and
- the “whole system is not consistent with the values of international criminal justice, and ... is under grave danger of just losing all credibility...”
Indeed, this was not the first time that the judges expressed their frustration over the unfairness, in their view, of the proceedings and practices in international courts. One may recall, for instance, strong statements made by some ICTY judges in their separate opinions:
“This Tribunal will not be judged by the number of convictions ..., but by the fairness of its trials. The Majority Appeals Chamber Decision and others in which the Completion Strategy has been given priority over the rights of the accused will leave a spreading stain on this Tribunal’s reputation” (judge Hunt in the Milosevic case).
“Since it was set up, the ICTY has operated on this system, which has surprised many... This seems all the more crucial because of the public accusations made against our institution by persons of indisputable character who said ... ‘The proceedings developed by the ICTY call more to mind the trials conducted by totalitarian regimes than the great principles of international law ...’ I personally cannot espouse a scheme described as a trial of a “totalitarian regime” (Judge Antonetti in the Seselj case).Similarly, in regard to the declaration by the alternate judge of wrongful, in his opinion, conviction of the accused: there is nothing extraordinary in different assessment of the sufficiency of evidence by the judges. As noted in the Tadic appeal judgement, two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.
As to the alternate judge’s not been involved in the deliberation (if there was one, formal or informal), one may recall that his statement was preceded by another confrontation in the courtroom.
Last year, at one of the hearings where only two judges and the alternate judge were present, the presiding judge adjourned the hearing as the Chamber, according to him, was not “properly constituted” (composed of two judges instead of three).
Reaction of the alternate judge was rather strong:
“I’m not here for decoration. I am a judge. This Bench is regularly composed, as everybody can see ... We are three judges sitting.”To this, the presiding judge merely noted that “this is not a situation where Rule 16 applies.”
Indeed, under Rule 16(B) of the SCSL Rules, an alternate judge may replace a judge only if that judge is unable to continue sitting for more than five days. In that instance the judge was not available only for that particular hearing.
Apparently it is the treatment of the alternate judge by his fellow judges and his dissatisfaction of his role in the Chamber that contributed to the judge’s frustration.
Pursuant to Rule 16 bis of the SCSL Rules, the role of the alternate judge in the proceedings is rather passive:
- he or she shall be present at the trial;
- may, through the presiding judge, pose questions which are necessary for his understanding of the trial proceedings;
- shall be present during the deliberations of the Trial Chamber but shall not be entitled to vote thereat.
This Rule is similar to Rule 15 ter of the ICTY Rules. However, Rule 16 bis does envisage a possibility for a more active role of the alternate judge. According to the Rule, he or she may perform such other functions as the presiding judge in consultation with the other judges of the Chamber may deem necessary.
It is noteworthy that, as prof. William A. Schabas wrote on his blog, in the ICTY, the reserve judges fully participate in the judicial work of the Chambers.