Summary
Like the first day of the proceedings of the Appeals Chamber, the second day merited a mixed review.

On the positive side, the Registry did an excellent job preparing the temporary courthouse for the proceedings.

With respect to counsel, their performance was uneven, ranging from insightful to disappointing.

Most strikingly, the performance of the judges continued to raise questions.

First, there were organizational difficulties that affected the proceedings.  Many counsel were initially informed that their motions would be decided on the papers submitted.  Then, at 23.00 on Friday, they were informed to prepare to argue their motions orally at Court on Saturday.

Second, the demeanour of some of the judges was at times deficient.  Some judges were unnecessarily curt or rude with counsel.  Some judges also lectured counsel unnecessarily, preventing them from making their arguments.
 

* Prosecutor v. Kallon: Application by Redress and the Lawyers Committee for Human Rights
The morning hearing began with the reading of a decision by the Appeals Chamber regarding an application by Redress and the Lawyers Committee for Human Rights for leave to make a written and oral amicus submission in the case of the Prosecutor v. Kallon.

Judge Robertson announced the decision of the Chamber.  He stated that Rule 74 of the Court’s Rules of Procedure and Evidence does not discriminate among parties seeking to intervene, but rather focuses on the assistance that can be provided to the Court.  The issue is then whether it is desirable for the Court to receive such assistance.  In making this determination, Judge Robertson stated that the Court would permit such submissions where it could be shown that there is reason to believe such submission will help to Court to reach a decision.

Judge Robertson also noted that the standards for granting leave to make such submissions might be different for the Trial Chamber and the Appeals Chamber.  In general, any third party wishing the Trial Chamber to take notice of information should refer such information to one of the parties.

In conclusion, based on the papers submitted, the Court granted the application for leave to make a written and oral amicus submission.

* Prosecutor v. Norman: Application by University of Toronto International Human Rights Clinic
Similarly, the application by the University of Toronto International Human Rights Clinic for leave to make a written amicus submission was granted by the Court.

* Prosecutor v. Taylor: Motion to Quash Indictment based on Head of State Immunity and Extraterritoriality
Submission by Diane Orentlicher (Court-appointed “friend of the Court”)
In continuation of her submission, which began on Friday, Ms Orentlicher stated that Article 1 of the Statute reinforces Article 6.2 regarding jurisdiction over heads of state.  She also confirmed her finding that the Court can exercise jurisdiction over heads of states other than Sierra Leone.

In response to a question by Judge Ayoola, Ms Orentlicher stated that the Agreement establishing the Court could be considered an international legislative instrument.

Ms Orentlicher also discussed the relationship between immunity and responsibility.  She said that the Nuremberg Tribunal set the precedent for rejecting head of state immunity as a shield from criminal responsibility.  She also stated that she believes that Article 6.2 of the Special Court’s Statute removes both substantive and procedural immunities.

Lastly, in response to questions about whether the Special Court may be considered an international court, she added to the arguments already set forth by noting that the UN Secretary General considered the inclusion in the Agreement of a provision designating the Appeals Chamber for the ICTY and ICTR as the Appeals Chamber for the Special Court.  She stated that, because the Secretary General considered that there was no legal obstacle to doing so, the Special Court is correctly considered to be an international court similar to the ICTY and ICTR.

Response by Desmond de Silva, QC for the Prosecution
The Court first asked Mr de Silva to explain the charges against Mr Taylor, and Mr de Silva stated that the Prosecution is charging Mr Taylor in his private capacity, in which he embarked on a common aim with others to steal diamonds and begin a war to that end.

Mr de Silva stated further that functional immunity could not apply and that Mr Taylor was not acting as head of state but was acting privately through agents in Sierra Leone.

Subsequently, in response to the Court’s question – “Did Mr Taylor enter Sierra Leone?” – Mr de Silva said that there is no evidence that Mr Taylor did so, save through his agents.

Mr de Silva also confirmed that the Mr Taylor is charged with participation in a criminal conspiracy pursuant to Article 6, and that the Prosecution understands that the immunity claim is a claim by the State of Liberia.

Mr de Silva further stated that the findings of Professor Sands and Professor Orentlicher support the Prosecution’s position, and that he did not wish to repeat the points that they had eloquently made.

He continued by stating that there are two crucial questions:
(1) Is the Court an international court?
(2) What is the real meaning of Article 6.2?

With regard to the first question, Mr de Silva initially turned to the Milosevic case.  He then stated that Chapter 7 powers were needed in the case of Yugoslavia and Rwanda because there was no agreement with the States concerned.  Here, in Sierra Leone, that is not the case.  Thus, this Court is a similar creation, but one which is actually more democratic, because Sierra Leone has explicitly agreed to its creation.

Judge Ayoola questioned how this statement relates to cooperation by other states that are not contracting parties to the Agreement.  In response, it was simply noted that such States could cooperate.

At this point, Judge Robertson noted that the Court is amenable to receiving additional written submissions within 14 days of conclusion of oral argument.  The opposing party will then have a week to respond to any such submissions.

Mr de Silva resumed with the statement that it is obvious that the Court is blessed with the hallmarks of an international criminal court.

Judge Robertson then queried about whether the Special Court was a “certain” international criminal court as specified in the ICJ case.

He also began querying whether the U.S. Military Commission at Guantanamo Bay would be a certain international court.  Mr de Silva artfully dodged this question, noting that, when he awoke this morning, he did not think that he would be discussing such example.  A joke was then made regarding the Prosecutor’s perhaps greater knowledge of such commissions.

In concluding, Mr de Silva returned to the issue at hand and said that there is no simple test to determine if a court is a certain international criminal court, but that the Special Court – because of an accumulation of factors – is such a court.

Reply by Terrence Terry for Mr Taylor
Mr Terry began by distinguishing the Kambanda and Milosevic cases.  He stated that in the Kambanda case there was no express statement about the issue of head of state immunity.  He then stated that in the Milosevic case Mr Milosevic was indicted for crimes alleged to have been committed in his own country.

Under questioning by the judges, Mr Terry stated that ICJ decisions are not binding on the Special Court.

Subsequently, in response to a question by Judge Winter, he conceded that the Court’s power to issue a warrant – as compared to obtain the execution of a warrant – is affected differently by the lack of an exercise of Chapter 7 authority by the UN Security Council in the establishment of the Court.

Mr Terry then began questioning the Court whether it would hold that the Queen of England would need to be brought before the Court if it were alleged that England had supplied arms to one of the parties.  In response, Judge Ayoola asked Mr Terry if supplying arms to one side of a conflict is a crime under international law?  Mr Terry avoided answering the question.

In conclusion, Mr Terry stated that, if the Court concludes that it is an international tribunal, the crux of the matter is the warrant.  Mr Terry stated that a warrant can only be served in Sierra Leone, and thus the warrant in this instance is invalid as a matter of law.

* Prosecutor v. Kallon; Prosecutor v. Norman: Motion by Fofana to Intervene in Motion by Kallon and Motion by Norman**
When the Appeals Chamber resumed session in the afternoon, the Court stated that it would permit the intervention by counsel for Mr Fofana in the Motion by Mr Kallon and in the Motion by Mr Norman.

This motion was granted on the basis of the proposal by Steven Powles, counsel for Mr Kallon, that counsel for Messrs Kallon and Fofana share the time originally set aside for counsel for Mr Kallon.

The Court invited a similar proposal by counsel for Mr Norman and Mr Fofana.

* Prosecutor v. Kallon: Motion by Gbao to Intervene in Motion by Kallon

Similarly, the Court granted this motion contingent on counsel for Mr Gbao reaching a similar agreement with counsel for Mr Kallon.

* Prosecutor v. Kallon: Application for Mr Kallon to be present in the courtroom
The Court very briefly heard from Mr Powles regarding the application for Mr Kallon to be present in the courtroom while his Motions were argued.

Judge Robertson noted that video facilities had been arranged for the detainees in the Court’s detention facility and noted the logistical constraints in the courtroom.  He also noted that this was not trial.

In response it was noted that, if successful on certain motions, Mr Kallon would be released from detention and thus should be present.

In conclusion, Judge Robertson stated that the Court would consider the application.

* Prosecutor v. Kallon: Motion for Extension of Time
Mr Powles sought leave of the Court to withdraw the Motion based on a change in circumstances.

Judge Robertson expressed displeasure with the late request for withdrawal of the Motion and indicated that there might be financial sanctions for counsel if something similar were too occur in the future.  He noted that the preparations had been made to hear the motion and that the judges had spent time reviewing it.  He was, however, forced to admit that it was a very brief motion.

Judge Robertson also began to inquire into the merits of the Motion, and Mr Powles explained that he was reluctant to discuss them because he had not prepared to argue its merits, but rather had prepared to withdraw it.

Ultimately, the Court granted Mr Powles request to withdraw the Motion.

* Prosecutor v. Norman: Application for Stay of Proceedings regarding Motions by Mr Norman referred to the Appeals Chamber under Expedited Procedures
Submission by Quincy Whitaker for the Defence
Before Ms Whitaker could begin any presentation of her argument, Judge Robertson and Judge Ayoola questioned her regarding what was being requested.

Ms Whitaker explained more than once that her client was requesting a stay of the Appeals Chamber proceedings regarding the Motions by Mr Norman that had been referred by the Trial Chamber.  Nonetheless, the judges appeared confused and somewhat hostile.

Ms Whitaker explained that the substantive Motion contesting the validity of the expedited appeals procedure had been filed in the Trial Chamber, and that only an application for a stay had been made in the Appeals Chamber.

Nonetheless, the judges wanted to discuss the substantive motion.  Unfortunately, it was not attached to the application for a stay, and despite a request that Ms Whitaker said she had made, had not been forwarded to the judges of the Appeals Chamber.  Ms Whitaker, however, was able to make available to the judges copies of the reply papers.  She apologized for not being able to make available copies of the substantive motion, and noted in mitigation that she had not been informed that there would be oral argument of this application until 23.00 on Friday.

Judge Robertson took notice of a very recent report published by Amnesty International on the substance of the motion, and copies were provided to the judges.  In response to questions, Ms Whitaker indicated that she had not helped to prepare that report.

Judge Robertson then began lecturing on how the ICCPR referred to the right to appeal by convicted persons, and forced Ms Whitaker to concede that Mr Norman was not a convicted person.

In response, Ms Whitaker stated that decisions on certain points of law may be essential to acquittal or conviction, and that by deciding such points in the first instance, the Appeals Chamber would be denying the right of appeal.

Judge Robertson then asked whether Ms Whitaker had read Archibold and knew that certain matters in the English courts could be appealed directly to the House of Lords.  Moreover, Judge Robertson cited the example of the potential U.S. military commission at Guantanamo Bay.

Judge Robertson also lectured on how many months accused wait for trial at the ICTY and ICTR, and asked Ms Whitaker if she was aware of this.  He also queried whether she was aware that these facts had shaped the establishment of the Special Court to be different.

Judge Robertson further noted that all of the judges had consented to the expedited procedures in plenary session.

In the end, Judge Robertson simply stopped Ms Whitaker from speaking and informed her that her time was at an end.

Submission by Mr Powles for the Defence
Judge Robertson queried whether it would be in the interest of Mr Powles client to wait over 40 months for trial.  He also asked Mr Powles if, in such circumstances, he would file a motion asserting that his client’s trial had been unduly delayed.  Mr Powles asserted that he would, and Judge Robertson said that he thought Mr Powles would file such a motion after a much shorter period.

This line of questioning by Judge Robertson degenerated into Mr Powles remarking that if speed was all that was essential then the trial could be legitimately transformed into a summary proceeding.  Judge Robertson said that Mr Powles could not be serious.

In the end, Judge Robertson also stopped Ms Powles from speaking and informed him that his time was at an end.

Submission by Luc Cote for the Prosecution
Judge Robertson began Mr Cote’s time with a comment about how lawyers from civil law systems might not be familiar with certain concepts.

In response, Mr Cote informed Judge Robertson that, despite his French name, he was experienced with the common law because he had practised law throughout Canada.

Mr Cote then summarized Prosecution’s position, stating that the Prosecution is not opposed to the expedited procedures.
 

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** This report is taken from the notes of an international law consultant for NPWJ, Mr John F. Stompor, who attended the proceedings before the Appeals Chamber of the Special Court for Sierra Leone.  The consultant was not present in the courtroom for the first part of the argument on Prosecutor v. Kallon; Prosecutor v. Norman: Motion by Fofana to Intervene in Motion by Kallon and Motion by Norman.