Summary
The first day of proceedings of the Appeals Chamber merited a mixed review.

On the positive side, the Registry did an excellent job in preparing the temporary courthouse for the proceedings.  The hearing proceeded almost flawlessly in terms of practical and technical organization.  Unfortunately, the other aspects of the proceeding did not equal this standard.

The performance of counsel was uneven.  Some counsel made solid presentations.  Indeed, the amicus presentation was confident, logical and compelling.  The performance of some of the other counsel, however, was disappointing.  Time allotted for oral argument was wasted in discussion of secondary issues, and arguments were not well-reasoned.

The performance of the judges also raised questions.

First, the day before the proceedings, they met to amend Rule 72(E) and (F) to state that preliminary motions shall be referred to a bench of at least three Appeals Chamber Judges.  However, this change would not appear to concur with the Statute of the Special Court, which only refers to the Appeals Chamber – not a panel of such judges – hearing appeals.

Second, the judges failed to arrange their docket so that the critical question of the legitimacy of the Rule 72 expedited appeals procedure was considered and decided immediately.  Instead, it was scheduled for Saturday or later.

Third, some judges’ questions appeared to exhibit some misconceptions about the law and the Special Court itself, thereby raising questions about their preparation.

Fourth, at times the demeanour of the judges was deficient.  Because the proceedings are intended as a supplement to the written submissions, the judges appeared to adopt the model of oral argument before an appeals court in the United States.  Consequently, frequent interruptions of counsel by the Judges asking questions were to be expected.  Some judges, however, took the tone of the proceedings a step further, and made it almost impossible for counsel to set forth arguments.  Some Judges also made lengthy arguments from the bench as opposed to asking questions of counsel.  Finally, some judges were unnecessarily curt with counsel.
 

Opening of Proceedings
The location for the hearing was the Special Court’s temporary courtroom adjacent to the detention facility.  In front of the bench, there was a table for the Registrar and the legal officer for the Chambers, approximately eight tables (and accompanying chairs) for counsel and a gallery with 35 chairs.  To the side of the bench, there was an audiovisual station for recording the proceedings.

The morning hearing began promptly at 10.00.  On instruction from the Registrar, all persons stood respectfully as the four current Judges of the Appeals Chamber entered and a corps of UNAMSIL buglers blasted their horns for approximately 17 seconds.  The bugle blast was an odd and ear-shattering spectacle, which caused some people to cover their ears.

Judge Robertson, the Presiding Judge of the Appeals Chamber and the President of the Special Court, then delivered a brief statement.  Judge Robertson stated that the Trial Chamber has asked the Appeals Chamber to resolve questions of law and procedural matters so that the trials can begin expeditiously.  Judge Robertson also noted that Judge Oda of the ICJ would be joining the Appeals Chamber as a replacement for Judge Jallow, who has resigned to become the Prosecutor at the ICTR.  (This was an unfortunately ill-timed and incorrect announcement.  Judge Oder of Uganda – not Judge Oda of the ICJ – likely will be joining the Appeals Chamber.  However, I understand that he has not yet been officially offered the post by the UN Secretary-General, he has not yet officially accepted the post, and the UN Secretary General has not yet made any announcement.)

It was then noted that the Rules of Procedure and Evidence had just been amended to permit the Appeals Chamber to proceed with its hearing with fewer than five Judges.

Finally, Judge Robertson set forth a schedule for the day that included a coffee break from 11.30 to 12.00 and then a lunch break from 13.30 to 15.00.  The day’s proceedings would then conclude at 17.00.

Following the opening statement, the Registrar announced the first matter before the Chamber, the Motion to Quash the Indictment in the case of the Prosecutor v. Charles Taylor.

* Prosecutor v. Taylor: Motion to Quash Indictment Based on Head of State Immunity and Extraterritoriality

On invitation from Judge Robertson, Prosecutor David Crane introduced his team consisting of the Deputy Prosecutor, Desmond de Silva QC, Chris Staker, Dr W.S. Marcus-Jones, and Abdul Tejan-Cole.  Terrence Terry then introduced himself for the Defence.

Submission on Issue of Standing by Mr Staker for the Prosecution
Judge Robertson first asked to hear from the Prosecution regarding the procedural matter of standing, and Mr Staker set forth the Prosecution’s position that the Motion should be rejected as premature since a person accused has no standing without appearing before the Court.

In support of the Prosecution’s position, Mr Staker pointed to Rule 73, which refers to motions brought by accused persons after their initial appearance.  He conceded, however, that Rule 72 is silent on the matter.

Mr Staker also argued that the ICTY decisions in the cases of Bobetko, Karadzic and Mladic support his position.

Judge Robertson, however, raised the example of appearances by counsel to quash indictments such as in the case of the indictment of Ariel Sharon in Belgium and Roman Polanski in California.

It also was noted that Rule 54 could provide some opportunity for Mr Taylor to proceed as he has chosen.

Response by Mr Terry for the Defence
Judge Robertson first asked Mr Terry what is the Government of Liberia’s position regarding the immunity of Charles Taylor.  Mr Terry responded that Mr Taylor had given him instructions before Mr Taylor left Liberia for Nigeria, and the Motion was filed pursuant to the power of attorney obtained from Mr Taylor.  Mr Terry also confirmed that Mr Taylor is making a conditional appearance.

Judge Ayoola inquired under what rule the Defence was making this Motion.  Mr Terry said that he is invoking the inherent jurisdiction of the Court, and not relying on Rule 72 or 73.

Reply by Mr Staker for the Prosecution
Mr Staker conceded that there is no direct precedent on this point with respect to a head of state.  He said that the body of law that the Court should look to in seeking guidance for its decision is the case law of the ICTY and ICTR.

Judge King then queried whether by appearing, Mr Taylor would be forced to give up his immunity.

Submission on Substance of Motion by Mr Terry for the Defence
Mr Terry stated that the Court is not an international criminal court, and is not like the ICC.  He stated that the Court is a treaty organization functioning as part of the judicial system of Sierra Leone.

Judge Robertson then asked Mr Terry – in sequence – whether the Nuremberg Tribunal, ICC, Tokyo Tribunal, East Timor Serious Crimes Panel, and Kosovo Court are examples of international courts.

Mr Terry responded that the Nuremberg Tribunal was not an international court, the ICC was an international court, the Tokyo Tribunal was not an international court, and the East Timor and Kosovo courts are not international courts.

Mr Terry also stated that regardless of the status of the Court, the issue of immunity still could be raised.

Judge Robertson then noted that the ICC treaty was ratified by Sierra Leone as the Special Court treaty was ratified by Sierra Leone, and queried what distinction the Defence was making.

Mr Terry failed to respond directly.

The discussion then became confused as the Court inquired about the other submissions that the Defence was making, and Mr Terry began discussing the various other Motions that he had made on behalf of Mr Taylor, such as:

(1) a Motion questioning the procedure by which the Court came into force and whether it did violence to the Constitution of Sierra Leone because there was no referendum regarding its establishment; and

(2) a Motion questioning whether the Prosecutor is in violation of the Sierra Leone Constitution by bringing an indictment without the permission of the Attorney General of Sierra Leone and the Director of Public Prosecutions.

The Court then brought Mr Terry back to the issue of today’s Motion, and he stated the issues are immunity and service and execution of the warrant of arrest in Ghana.

Mr Terry conceded that the indictment and arrest warrant could be withdrawn and refilled, and that there is no problem with prosecution of an ex-head of state.

Judge Robertson queried what would happen if Liberia waived immunity and whether that would end the application by Mr Taylor.

Mr Terry said that Liberia could not retrospectively waive immunity.

Mr Terry next discussed the ICJ decision regarding the Congo v. Belgium case.  Mr Terry said that he was relying on the majority decision, and cited a passage regarding the warrant of arrest.

During this discussion, Mr Terry changed his earlier position, and conceded that if Liberia waives immunity, then the application would fall away.

Judge Ayoola then returned the discussion to the Special Court Ratification Act, and asked whether it was simply an internal practice of Sierra Leone.

Judge Ayoola also asked whether, if the Court is a “certain international criminal court”, the application fails.

Mr Terry said that the Court is not a “certain international criminal court” because of the following reasons related to the Special Court Ratification Act.

First, Mr Terry said that the very name of the Court – the Special Court for Sierra Leone – indicated that the Court was not international because the word “international” is not part of its name.

Second, Mr Terry said that the text of the Agreement does not define the Special Court as an international court.

Third, Mr Terry said that the court was not an international court because it was established by an agreement between Sierra Leone and the UN.

At this point, Judge Ayoola inquired about whether despite the Court having been established by an agreement between Sierra Leone and the UN Security Council there might be a form of Chapter 7 powers of the UN Security Council that was utilized in the resolution regarding the Court.

This question was not directly answered by Mr Terry.

Fourth, Mr Terry said that the UN Secretary General recommended in the case of the ICTY that a treaty not be entered into, and thus, since a treaty was entered into in this instance, the Court must not be international.

At this point, Judge Robertson interrupted to inquire about the cases on which Mr Terry was relying in his argument.  The Eastern Greenland case, the Lotus case and the Schooner Exchange cases were noted.

Fifth, Mr Terry said that a unique feature of international tribunals is that they exercise jurisdiction over individuals living in their particular sovereign state and subject to their specific jurisdiction.

Sixth, Mr Terry said that international criminal courts do not sit in states where the alleged violations occurred.

Judge King asked at this point how, under Mr Terry’s understanding, the Special Court functions as a part of the judiciary of Sierra Leone.

Mr Terry pointed to the provisions of the Special Court Ratification Act that state that orders shall have the same effect as orders of Sierra Leone courts and warrants shall have the same effect as warrants issued by Sierra Leone courts.

Submission by Philippe Sands QC (Court-appointed “friend of the Court”)
Judge Robertson called Mr Sands to the podium and announced that he was a court-appointed amicus or friend of the court who would provide a submission about the issues raised by the Motion.

In his introduction, Mr Sands made four points.

First, he stated that the ICJ decision in the Congo v. Belgium case stands for the proposition that, before a national court, a sitting head of state is entitled to immunity unless there is a waiver of that immunity.

Second, he said that the decision stands for the point that one state may not circulate an arrest warrant for another sitting head of state.

Third, he said that the majority of academic commentary says that there is no immunity for a serving head of state before an international criminal court.  On this point, he said that there are two views.  The first view holds that there is no entitlement whatsoever to claim immunity.  The second view holds that a head of states position before an international court is the same as before a national court but, in the case of an international court, head of state immunity may be removed through a treaty or by UN Security Council action.

Fourth, he stated that, whether an arrest warrant can be circulated, depends on the governing instrument of the court.

Judge Robertson then suggested that, after the break for lunch, Mr Sands resume with an historical discussion, noting the Treaty of Versailles, the Nuremberg Tribunal, the Tokyo Tribunal etc.

----------
** 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.  It should be noted that the consultant was not present in the courtroom during the later afternoon for the continuation of the presentation by Mr Sands and the beginning of a presentation by Diane Orentlicher.