This is the third installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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The Sow dilemma
Having discussed Harhoff in some detail (an entire day can be spent analyzing all the nuances of this matter), I segued into what I referred to as the Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting.
Judge Malik Sow, in an unusual and dramatic fashion, effectively accused his brethren in the Special Court for Sierra Leone (SCSL) Charles Taylor case, in which he was an alternate judge, of not properly engaging in serious deliberations in the case. After the summary of the judgement was read, quite unexpectedly, Judge Sow proceeded to criticize the deliberative process in Taylor, casting a shadow of bias on his fellow judges and calling into question the integrity of the SCSL:
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 are no serious deliberations, the only place left for me is 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, 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.
After this comment, the SCSL Plenary met to consider what if any action should be taken against Judge Sow. The Plenary found that Justice Sow’s behavior in court “amount[ed] to misconduct rendering him unfit to sit as an Alternative Judge of the Special Court,” directing him under Rule 24(iii) “to refrain from further sitting in the proceedings pending a decision from the appointing authority.” The Plenary also found that Justice Sow’s future should be decided under Rule 15bis (B).
The Sow dilemma gave the Defence a potential opening for disqualification of the judges involved in dealing with Judge Sow’s disciplinary matter. The Defence moved to disqualify the Appeals Chamber, asserting an unreasonable appearance of bias on the ground that “a reasonable observer, properly informed, would apprehend bias on the part of the Judges of the Appeal Chamber, because they have already made an adverse finding in the plenary and therefore pre-judged a critical aspect of the credibility of a source of evidence which is fundamental to the Grounds of Appeal.” The Defence asserted that Judge Sow’s statement contained direct evidence of grave breaches of trial procedure in relation to the proceedings against Charles Taylor—a fundamental basis for grounds of appeal.
Judge Sow’s statement was transcribed by court reporters and appeared on the LiveNote contemporaneous transcript. The official transcript of the sitting does not include Judge Sow’s statement. The Taylor Defence considered it a reasonable inference that SCSL court reporters were told to remove the statement prior to publication, or that it was deliberately removed from the official record by an organ or official of the court empowered to give such an order. The Defence also asserted that the six judges who voted in plenary against Judge Sow were the six judges of the Appeals Chamber. According to the Defence:
Judges that have already made an adverse finding on a critical aspect of the credibility of a source of evidence during the trial process should not again consider the credibility of that source of evidence in the same proceeding during the appellate process, as this gives rise to a reasonable apprehension of bias from the perspective of a properly informed observer.
The Appeals Chamber effectively pre-judging an aspect of a ground for an appeal — the professional credibility of Judge Sow — would not be viewed by a reasonable observer, properly informed, as free from bias. In deciding on the Defence’s request, the Appeals Chamber considered the Plenary Resolution. It found that it did not involve, or could not reasonably be perceived as involving matters related to Charles Taylor’s guilt or innocence; it only went to Judge Sow’s conduct. The Appeals Chamber held that “sanctioning judicial misconduct in a trial does not constitute nor give rise to the appearance of prejudgment of the guilt or innocence of the respective accused.” As for Judge Sow appearing as a witness in Charles Taylor’s appeal, the Appeals Chamber found that it was not pre-judging Judge Sow’s credibility as a witness. If the same Appeals Chamber had found Judge Sow not to be credible in his assertion relating to the Trial Chamber (as this would justify his statement), how could it find him credible on an appeal – appearing as a witness – and testifying about his conduct during the trial proceedings? Strange. Ultimately, the Appeals Chamber found itself free from bias, and the appearance of bias.
Judge Sow’s statement involved serious allegations against the credibility of the SCSL. If these allegations were true, what options did he really have? In blowing the proverbial whistle, did Judge Sow bring the SCSL’s credibility into disrepute — an action which, if done by Defence counsel, may be sanctionable by the tribunal, or did he act appropriately under the circumstances for which he should be commended? While no code of judicial ethics exists for the SCSL, by analogy, counsel are bound by the Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone. Article 5(iii) states: “Counsel shall act with integrity to ensure that his actions do not bring the administration of justice into disrepute.” The ICTY, which also lacks a code of judicial ethics, has a similar rule regarding counsel. The ICC and ECCC both have judicial ethics codes for judges. The ICC’s code explicitly states that: “While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the Court.” The SCSL Plenary obviously was not pleased, finding Judge Sow to have engaged in misconduct rendering him unfit to sit as an Alternate Judge.
Bangalore Principles of Judicial Conduct
With Harhoff’s folly and Sow’s dilemma as a backdrop, I thought it would be good to reflect a bit on the guidance provided by the Bangalore Principles of Judicial Conduct. Since time did not permit an in depth analysis, I focused on a passage from the preface to the commentary on the Bangalore Principles. Inspirational as much as aspirational, the simple concepts expressed in the few lines below captured the essence for holding symposiums on judicial ethics.
A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other protections fail, it provides a bulwark to the public against any encroachments on its rights and freedoms under the law.
These observations apply both domestically within the context of each nation State and globally, viewing the global judiciary as one great bastion of the rule of law throughout the world. Ensuring the integrity of the global judiciary is thus a task to which much energy, skill and experience must be devoted.
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Next up: some examples of potential bias to see the practical applications of Furundžija.
 Prosecutor v. Taylor, SCSL-03-01-A, Charles Ghankay Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges, 19 July 2012, para. 9.
 Prosecutor v. Taylor, SCSL-03-01-A, Trial Transcript, 16 May 2012, p. 49681.
 Rule 15bis(B) of the SCSL Rules of Procedure and Evidence states:
Should the Council of Judges determine that:
(i) the allegation is of a serious nature, and
(ii) there appears to be a substantial basis for such allegation,
it shall refer the matter to the Plenary Meeting which will consider it and, if necessary, make a recommendation to the body which appointed the Judge.
 Prosecutor v. Taylor, SCSL-03-01-A, Charles Ghankay Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges, 19 July 2012, para. 3.
 Id., para. 10.
 Id., para. 11.
 Id., para. 14.
 Id., para. 16 (emphasis added).
 Prosecutor v. Taylor, SCSL-2003-01-A, Charles Ghankay Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges, 13 September 2012, paras. 29–30.
 Id., para. 30.
 Id., para. 32.
 Id., para. 34.
 Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, adopted 14 May 2005, Article 5(iii).
 Code of Professional Conduct for Counsel Appearing before the International Tribunal (ICTY), IT/125 Rev. 3, as amended 22 July 2009, Article 3(V): “Counsel shall take all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute.”
 ICC Code of Judicial Ethics, ICC-BD-02-01-05, Article 9. See also ECCC Code of Judicial Ethics, 5 September 2008, Article 7: “While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the ECCC.”
 Prosecutor v. Taylor, SCSL-2003-01-T, Sentencing Hearing Transcript, 16 May 2012, at 2.
 Preface to “Commentary on the Bangalore Principles of Judicial Conduct”, The Judicial Integrity Group, March 2007.