What Part of “Part” Does the ICTY Not Understand?

Dov Jacobs calls attention today to an ICTY press release announcing that the Acting President of the ICTY has assigned a new judge to the Seselj case, Mandiaye Niang, pursuant to Rule 15bis of the Rules of Procedure and Evidence. Here is the text of the rule, in relevant part (emphasis mine):

(C) If 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, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Dov has already covered this well, but it is worth repeating: Rule 15bis does not apply to the Harhoff situation, and the Acting President’s willingness to apply the rule is deeply problematic. The Seselj case is not “part heard” — it is completely heard, with closing arguments having been given nearly two years ago. So there are no “proceedings to continue”; all that is left is to finish the judgment, which is presumably well underway given that Judge Harhoff was only disqualified last month. How, then, can rule apply? The Acting President claims (without explanation) that it applies “mutatis mutandis.” Apparently, that’s Latin for “because we want it to.”

The implications of the Acting President’s decision are no less troubling. It means one of two things: either Judge Niang will participate in deciding and writing the judgment in a case in which he did not hear a single witness or item of evidence, or the case will start all over again, ten years after Seselj voluntarily surrendered to the ICTY and seven years after his trial began. The first possibility is such an affront to the concept of a fair trial that I cannot believe that even the ICTY would consider it. So that leaves the second possibility — which would mean that, unless the Tribunal releases him for the duration of his retrial, Seselj would remain in custody for at least another few years. (And probably longer than that, given that the retrial would almost certainly have to be conducted by the ICTY’s residual mechanism, which is barely four months old.) Such endless detention would make a mockery of Seselj’s right to a speedy trial and his right to not be arbitrarily detained — something we would expect from a government like Rwanda’s, not from an international tribunal.