Alternate judges as sine qua nons for international criminal trials.

• Author: Fairlie, Megan A.
• Position: VI. The Introduction of Alternate Judges through Conclusion, with footnotes, p. 96-122

6. THE INTRODUCTION OF ALTERNATE JUDGES

   The notion that mid-trial judicial substitutions will at some stage offend the interests of justice is likewise consistent with subsequent amendments made to the ICTY's Statute and Rules, which provided at least a partial answer to critics of the Milosevic case. In December 2005, the ICTY judiciary authorized its newly elected President, Fausto Pocar, to propose that the UN Security Council appoint ad litem judges who could serve as judicial alternates, or "reserve judges," for Trial Chamber panels in multi-accused trials. (155) By that time, joint trials had become a key part of the ICTY's efforts to comply with its completion strategy, (156) with some cases bulging to encompass as many as nine accused (157) and prompting the reconstruction of ICTY courtrooms to accommodate the increased number of co-accused. (158)

   The move to incorporate reserve judges--"the most visible sign of unhappiness" with the practice of replacing judges in pending trials (159)--was ultimately successful. New Rule 15 ter was adopted once the UN Security Council approved the necessary additional judges. (160) Rule 15 ter introduced the possibility of assigning a reserve judge to sit with the three judges assigned to a case, with the crucial requirement that the "reserve Judge ... be present at each stage of a trial to which that Judge has been assigned." (161) Rule 15 ter also protected against the possibility of losing a judge in the midst of deliberations by requiring that reserve judges "shall be present, but shall not vote, during any deliberations in a trial." (162) Although rightly heralded as "a long-awaited reform" and a move that perhaps "reflect[ed] dissention and unhappiness among the judges themselves about the previous practice," (163) the new rule nevertheless failed to cure all the Tribunal's ills.

   Rather than provide for a reserve judge in every case, whether an alternate is to be assigned at all is a matter of Presidential discretion. (164) As a result, the possibility of employing a substitute judge in the midst of trial and over the objections of the accused endured. (165) In fact, the revised rules peculiarly appear to permit an unfamiliar judge to join the bench--mid-trial and over the objection of the accused--even when a reserve judge has been assigned. (166) Moreover, gearing the new rule's protections solely to the trials of multi-accused (167) further narrowed the promise reserve judges afforded. (168) The ICTY later deviated from this narrow policy in the high profile Karadzic case in late 2009, (169) but the decision to expand the use of reserve judges beyond cases involving multiple accused was not followed in the Seselj prosecution.

7. THE SESELJ MATTER

   The failure to provide for a reserve judge in the Seselj case, then, resulted in an outcome that was not only unfortunate, but also avoidable. If anything, Seselj's conduct prior to the start of his trial in 2007 ought to have provided sufficient notice that the length of his prosecution might well rival that of any multi-accused case and was, correspondingly, likely to benefit from the insurance provided by a reserve judge. Indeed, Seselj had all but single-handedly engineered the more than four year gap between his first (and decidedly vexatious) courtroom appearance (170) and when his "trial started anew on 7 November 2007." (171) By that stage, Seselj's penchant for using his pro se status to obstruct tribunal proceedings had been amply demonstrated (172) and, having just regained the right to self-represent by orchestrating a hunger strike, (173) could only have been expected to continue. (174)

   Predictably, Seselj's conduct contributed markedly to the length of his 2007 trial, (175) although his three-judge panel remained intact until well after closing arguments were heard in March 2012. Upon Judge Harhoff's disqualification after more than a year of the panel's deliberations, (176) however, there was no reserve judge waiting to take his place. (177) As a result, the Seselj case presented the ICTY with an unprecedented set of facts. It furthermore presented the novel question of how to proceed once a trial panel is rendered incomplete in the midst of deliberations.

   1. The September 2013 Order

      Less than a week after Judge Harhoff's disqualification, Acting President Agius issued a follow-up order that began by noting that when a new judge replaces a disqualified one pursuant to Rule 15, the rule "does not set out any procedures to be followed in the event of such a replacement." (178) Rather, the Acting President noted, it is Rules "15bis(C) and 15bis(D) of the Rules [that] set out the procedures to be followed in the event that a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration." (179)

      1. Accuracy

         As noted above, this view that the relevant provisions in Rules 15 and 15 bis are interrelated is consistent with the text of 15bis(C), which sets out the procedure to be followed whenever "a Judge is, for any reason, unable to continue sitting in a part-heard case." (180) What is more, the broad language in the sub-rule is fundamentally sound. Logic suggests that the decision to provide procedural safeguards in the event that a new judge joins a case mid-trial reflects the judiciary's view that the practice raises fair trial concerns. Indeed, case law expressly acknowledges this by describing "consent as a means of determining and safeguarding the rights of the accused to a fair hearing" (181) and maintaining that the procedures required when proceedings are continued in the absence of consent include "safeguards [that] ensure that fair trials rights are not compromised." (182) That these safeguards are sweepingly applicable reflects the fact that the fair trial concerns they are designed to address exist irrespective of the reasons why a Chamber has been rendered incomplete. Accordingly, failing to apply them in the wake of a mid-trial judicial disqualification would render the trial process at best arbitrary and at worst unfair. Critically, however, Rules 15 and 15 bis could not be applied in tandem to the Seselj matter, as the procedure set out in the latter applies only to part-heard cases, a prerequisite that the Acting President acknowledged did not align with the "more advanced stage" of the Seselj proceedings. (183)

      2. The Procedural Misstep

         Assuming, as this work does, that the above interpretation is correct, (184) it would have been proper for the Acting President to then conclude that the RPE prohibited the use of a replacement judge in Seselj's case. Because the Rules permit the use of replacement judges only in part-heard cases, and only then upon compliance with designated procedural safeguards, it is reasonable to conclude that the prospect of introducing new judges to completely heard cases is simply not permitted. In this regard, Judge Robinson's comments in the Aleksovski trial are instructive: "Where, as in the instant case, the particular subject ... is dealt with, but a potential aspect or modality of it has been omitted, the proper construction is that that aspect or modality is prohibited." (185) Remarkably, however, rather than conclude that the specificity of the existing rules curtailed the ICTY's ability to proceed with a replacement judge, the Acting President opted instead to disregard the specificity of the Sub-rule entirely. Jettisoning the "part-heard case" requirement, the September Order concluded that Rules 15bis(C) and 15bis(D) "ought to be applied mutatis mutandis" (with the necessary changes). (186)

         1. Fairness and Credibility Considerations

            Contrary to the Acting President's assertion that this modification would advance the aims of "fairness and transparency," the suggested scheme could only have had the opposite effect. As to the former concern, jettisoning the "part-heard case" requirement could scarcely be deemed to enhance the fairness of the proceedings, particularly in light of the collegiality considerations noted above. Rather, reason--and germane case law (187)--suggests that the greater the gap in familiarity between the new and existing judges, the greater the negative effect on the fairness of the proceedings. Moreover, the blitheness of the proposal to eliminate the express requirement hardly contributes to any transparency aim. To the contrary, it suggests a disconcerting willingness to ignore the rule constraint simply because it proves inconvenient to continuing the proceedings. (188) In effect, by ordering that the ICTY ought not to be bound by its rules as written, this aspect of the September order creates the impression that the ICTY is not even "somewhat just," (189) a perception hardly remedied by the events that followed.

         2. The Rejection of the Order

            Immediately following the September Order, the Presiding Judge rejected the Acting President's plan, maintaining that applying Rules 15 and 15 bis, in tandem, amounted to "play[ing] around" with the Rules, as 15 bis ("Absence of a Judge") "concerns an entirely different situation" than Rule 15 ("Disqualification of Judges")." (190) In other words, the Presiding Judge somehow decided that substitutions made in the wake of judicial disqualification do not benefit from the protections that are otherwise available whenever a judge is replaced mid-trial.

            This conclusion, however, overlooks the text of Rule 15bis(C), (191) its initial placement as Rule 15(E) under the title "Disqualification of Judges", (192) and its later word-for-word transfer to a new rule governing absent judges (which, indeed, disqualified judges are). (193) What is more, it renders the trial process arbitrary; although fairness concerns are created whenever a mid-trial substitution is made, under the Presiding Judge's interpretation, a select class of cases (substitutions made pursuant to judicial disqualification) are exempted from the...