Alternate judges as sine qua nons for international criminal trials.

• Author: Fairlie, Megan A.
• Position: Introduction through V. The Application of New Rule 15bis(d

ABSTRACT

When one of the three judges hearing the case against Vojislav Seselj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge--who had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj's case was both procedurally illegitimate and markedly at odds with the ICTY's statutory guarantee of a fair trial. It also explains how ICTY proceedings came to be rendered vulnerable to the havoc created when a judge is lost mid-trial and considers how to mitigate the damage the Seselj decision has wrought upon the reputation of the ICTY. Finally, this Article illustrates how the International Criminal Court is currently destined for its own Seselj moment and contends that the proper way forward is through the liberal designation of alternate judges.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND III. THE OMISSION OF ALTERNATE JUDGES IN THE ICTY STATUTE IV. REPLACEMENT JUDGES UNDER THE ICTY RULES A. More Comprehensive Look at Rule 15 B. The Significance of a Rules-Based Analysis C. Subsequent Amendments V. THE APPLICATION OF NEW RULE 15BIS(D) VI. THE INTRODUCTION OF ALTERNATE JUDGES VII. THE SESELJ MATTER A. The September 2013 Order 1. Accuracy 2. The Procedural Misstep B. The December 2013 Decision 1. The Procedural Misstep C. The Recent Appeal D. Summary VIII. LESSONS LEARNED A. The Significance for the MICT B. The Significance for the ICC 1. Designating an Alternate Judge 2. Does the Rome Statute Permit Mid-trial Judicial Replacements? IX. CONCLUSION "[A]ny trials to which lawyers worthy of their calling lend themselves will be trials in fact, not merely trials in name, to ratify a predetermined result."

--Justice Robert H. Jackson, April 13, 1945 (1)

1. INTRODUCTION

   For well over a year, Vojislav Seselj's prosecution for war crimes and crimes against humanity at the International Criminal Tribunal for the former Yugoslavia (2) (ICTY) has been on hold. The delay is designed to allow replacement Judge Mandiaye Niang time to "familiarise himself' with the record of Seselj's more than four-year trial. Although Niang was not present for a single day of the Seselj proceedings, the plan is for him to ultimately form part of the three judge panel that determines whether Seselj should be convicted of serious violations of international humanitarian law. (3)

   This Article examines the procedural legitimacy--or illegitimacy--of the decision to continue Seselj's case with a replacement judge and argues that the assignment of Niang to the Seselj case conflicts with the ICTY's statutory guarantee of a fair trial before three independent judges. In so doing, it illustrates how the rights of accused persons at the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (4) (ICTR), have been incrementally sidelined in order to avoid costly and time-consuming re-trials. Establishing the significant harm that the Seselj matter has wrought upon the ICTY's reputation, this Article then considers the steps that the Mechanism for the International Criminal Tribunals (5) (MICT)--the ICTY and ICTR's successor tribunal--should take to mitigate the damage wrought in Seselj. This Article then concludes by demonstrating how ICTY and ICTR precedent in general and the Seselj debacle, in particular, should serve as a cautionary tale for the International Criminal Court (6) (ICC).

2. BACKGROUND

   Vojislav Seselj's prosecution for instigating war crimes and crimes against humanity (7) began on November 7, 2007 before ICTY Judges Antonetti, Harhoff, and Lattanzi. (8) This three-judge panel, tasked to determine Seselj's criminal responsibility, presided over the courtroom proceedings until their conclusion on March 20, 2012. (9) Deliberations began quickly after closing arguments were heard. (10) By the time of the deliberations stage, the trial's record consisted of more than 17,000 pages of transcript, nearly 1,400 admitted exhibits, and over 500 submissions made by the accused. (11) More than a year later, the ICTY President announced that the Trial Chamber would render its judgment in October 2013. (12)

   Just days after that plan was made public, however, a controversial personal email from Judge Harhoff surfaced. The correspondence criticized the ICTY President and then-recent acquittals at the ICTY. (13) The revelation prompted Seselj to move for Harhoffs exclusion from the trial panel. Harhoffs subsequent disqualification for an unacceptable appearance of bias, (14) the first of its kind at the ICTY, (15) left uncertainty in its wake. Shortly after the disqualification, the ICTY's spokesperson admitted, "[w]e're not completely sure what will happen" and acknowledged that the ICTY's rules needed to be consulted. (16)

   What the ICTY ought to have done was engage in a careful analysis of the relevant rules of procedure, consider the rules' development and application over time, and pay particular attention to their express procedural protections. Proceeding in this way would have been transparent and predictable. It would also have had the added benefit of drawing from ICTY experience, including the product of multiple judicial plenaries that previously considered and addressed the fairness implications created by losing a judge mid-trial. Instead, Seselj's newly constituted Trial Chamber charted a different course by issuing a decision that concludes, after four brief paragraphs that make no reference to the rules, "that the assignment of [a new judge] does not represent an obstacle to the continuation of proceedings." (17)

   Fallout from the ruling was swift and well-deserved. Lending credence to longstanding Serbian suspicion of the ICTY, (18) the thinly-reasoned opinion prompted speculation that it was little more than a preordained decision to proceed to a predetermined conviction. (19) Perhaps worse still, (20) the decision evoked powerful criticisms for its failure to meaningfully honor the ICTY's requirement of a three-judge trial panel, (21) and its apparent disregard of the ICTY's rules. (22)

   In light of the recent confirmation of the ICTY's decision to proceed with a new judge with little discussion on appeal, (23) this Article undertakes the procedural analysis that both the Trial and Appeals Chambers failed to conduct by comprehensively evaluating the relevant rules. In so doing, this Article considers and analyzes pertinent case law from the ICTY and ICTR along with jurisprudence from their shared Appeals Chamber 24 to remedy existing misperceptions about the provisions relevant to Seselj's case.

   By providing a broader perspective on the role of replacement judges in international criminal justice, this Article's contribution extends well beyond the Seselj matter. Drawing upon the experience of the post-WWII tribunals at Nuremberg and Tokyo, this Article establishes that the initial failure of the UN Security Council to provide for alternate ICTY judges was an unfortunate and avoidable error. It then illustrates how the ICTY's attempt to compensate for this shortcoming was initially robust, but regrettably short-lived. Tracking the ICTY's approach to substitute judges throughout its operation, this Article demonstrates how the history of replacement judges at the ICTY reveals an increasing disregard for the rights of the accused in favor of avoiding costly and time-consuming rehearings.

   Highlighting the pressure the UN Security Council has continuously placed upon the ICTY and ICTR to expedite their proceedings, this Article argues that the costs of not providing for alternate judges, exacted in...