The Final Nail in the ICTY’s Coffin

by Kevin Jon Heller

So, it’s official: the ICTY Trial Chamber has decided to let Judge Niang replace Judge Harhoff on the Seselj case:

The Trial Chamber on Friday issued a decision on the continuation of the proceedings in the case of Vojislav Šešelj, following the disqualification of Judge Frederik Harhoff and appointment of Judge Mandiaye Niang to the Bench.

The Chamber unanimously ordered that the proceedings would resume from the point after the closing arguments, and move into the deliberations phase as soon as Judge Niang has familiarized himself with the file. The Trial Chamber will issue a decision once this has been completed.

The Chamber agreed that a new judge is able to assess witness testimony given in his absence through other means, including video recordings. Consequently, the Chamber concluded that Judge Niang will be thus able to evaluate the credibility of witnesses heard during the proceedings in the Šešelj case, and familiarise himself with the record of the proceedings to a satisfactory degree.

[snip]

The Prosecution argued that that the trial should continue at the deliberation stage, after Judge Niang familiarises himself with the existing case record. The Prosecution claimed that such a solution would not be unprecedented in the Tribunal’s practice, pointing to the trial of Slobodan Milosevic where Judge Bonomy replaced Judge May.

The ICTY has yet to release an English translation of the decision, but Dov Jacobs notes on twitter that the Trial Chamber claims allowing Judge Niang to participate in deliberations, despite not hearing a single witness or item of evidence, is “in the interest of justice.” By “in the interests of justice,” of course, the Trial Chamber means “in the interests of conviction,” because there is nothing remotely just about permitting a judge to decide the fate of an individual whose trial he did not attend for even a single day.

Alas, that is only one of many absurdities in the case. As I have pointed out before, the Tribunal is appointing Judge Niang pursuant to a rule of procedure, Rule 15bis, that applies only to “part heard” cases. But applying the rule as written would prevent Seselj from being convicted, so the Tribunal is simply ignoring what it says. And, of course, the OTP is playing its part by invoking the dreaded Milosevic case as precedent, conveniently ignoring the fact that Judge Bonomy was appointed to replace Judge May before the defence began its case in chief, a situation that — unlike Seselj’s — is actually covered by Rule 15bis.

But don’t worry, Judge Niang is supposedly going to spend the next six months “assess[ing] witness testimony given in his absence through other means, including video recordings,” and will thus be able to “familiarise himself with the record of the proceedings to a satisfactory degree.” Of course he will: it’s not like the trial lasted 175 days, involved 81 witnesses, included 1,380 exhibits, and generated more than 18,000 pages of trial transcript (a mere 100 pages of transcript per day, assuming Judge Niang never takes a day off and fits his reading in around the hundreds of hours of witness testimony he will need to watch).

I’ve always defended the legitimacy of the ICTY — even after experiencing first-hand in the Karadzic case how unfair the Tribunal can be at times. But no longer. Unless the Appeals Chamber does the right thing, this latest decision will forever tarnish both the ICTY’s legacy and international criminal justice more generally.

http://opiniojuris.org/2013/12/16/final-nail-ictys-coffin/

20 Responses

  1. Interesting timing. ICC says defendants must be present for trial; ICTY says judges don’t have to. 

  2. “Unless the Appeals Chamber does the right thing, this latest decision will forever tarnish both the ICTY’s legacy…”

    What in your view is “the right thing” to do then? Retrial? The trial has been going on for over 6 years now and if it is to start from scratch, with possible more contempt proceedings etc., Seselj will most certainly be the last defendnat to get a verdict from this Tribunal and the person with longest detention history at Scheveningen (over ten years already). We know where this road will take us – to the inevitable (and this time well-earned) criticism on Seselj’s right to a fair trial within reasonable time etc.  

    Not to open old debates we’ve had, but the broad and unconvicing interpretation of Judge Harhoff’s alleged bias in this case has only served to create a real problem. Now this is where I would use the “digging yourself deeper” metaphour that you coined in one of your previous posts… :)

  3. Usually, before discussing judicial decisions, I actually read them (or wait for the translation if I don’t understand the language). It’s a good method, which every lawyer should take to heart. Relying on a press release for going all out after the Tribunal on the other hand is not so helpful. 
    In this case, actual knowledge of the matter you are writing about would include the fact that Seselj had not put on a defense case. So the situation is indeed similar to to the Milosevic case where Judge Bonomy came onboard after the presentation of the prosecution evidence but before the start of the defense case. And that case was clearly much bigger than Seselj’s. Now, I understand if you disagree with this in principle (and there are many questions that hopefully will be resolved by the Appeals Chamber) but it’s important that you get your facts straight. 
    Finally, if you had read the decision, you would have seen that the Chamber (at least the majority) seems to rely on Rule 54 (no specific mention of Rules 15bis/15 — but see the separate opinions). 
    It’s one thing to be critical and I agree with some of your criticisms, but it’s important base the criticism on something that you have actually read. 

  4. There is no similarity whatsoever between Milosevic and Seselj — Bonomy was present for half of the evidence in the former; Niang was present for none of the evidence in the latter. That Seselj chose not to present a defence is irrelevant to whether the case was part heard. 

    If you have followed the Seselj case, you are aware that Judge Niang was appointed pursuant to Rule 15bis. I hope the Chamber isn’t relying on Rule 54 in the decision — it is, of course, a “general rule” that says a Trial Chamber “may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” That would be even worse than a deliberate misapplication of Rule 15bis.

  5. Umm. Both Judge Bonomy and Judge Niang were not present in the prosecution phase of their respective cases. There was a defence case in Milosevic, for which Bonomy was present. There was NO defence case in Seselj. So in that sense, even the other two judges were not present for the defence case, because there was NONE. Not quite sure then what you mean by “half the case”. Only difference is that Judge Niang was not present for closing arguments, which, in my view, is not that grave, given that closing arguments don’t require the same from a judge than a testifying witness. 
    And yes, I have followed the case. Hence my suggestion that you read a decision, understand its reasoning and THEN make your criticism. A “hope” that a Chamber would have relied on some or the other is not so helpful in this context…

  6. While we are on the topic of being reasonable, how about someone tell that French judge in the trial chamber to stop being such a pain about his language and draft in one we can all understand. I have some basic understanding of French but it is not enough to get me through court decisions and I can tell you very few of the lawyers here, on the ground, can understand the tribunal’s decisions in French. Every time I see Antonetti’s name on a court document I know I’ll have to put it on hold and wait for translation.

  7. Bob,

    Seriously, your argument is ridiculous. Judge Bonomy joined Milosevic in the middle of the trial. That is why the case was “part heard” when he joined. Judge Niang is joining Seselj after the end of trial. That is why the case is “entirely heard,” not “part heard.”

  8. Again, the “part heard” argument depends on which Rule the Tribunal actually applies. Given the ambiguity in the Vice-President’s decision and the Trial Chamber’s understanding of the process, this is a difficult case to make. Ultimately, the Appeals Chamber will have to determine which Rule applies in this case. 
    What I am pointing out is that there is no difference between Milosevic/Seselj in fact — in each case, one judge did not hear the prosecution case. In Milosevic, that Judge then went on to hear the defence case. In Seselj there was no defence case. So why is there a difference (apart from the semantics of a “part heard” case, which again depends on which Rule – 15, 15 bis, or something else entirely is applied).

  9. Kevin,
    I don’t have time to blog about this, but 2 brief clarifications to inform your debate with bob.
    1) the decision is indeed based on Rule 54 and not Rule 15 or 15bis. This is unfortunate, but not surprising. Indeed, Antonetti has indicated from the start that he disagrees with the application of Rule 15bis to this matter (the only point with which I agree with him…). So he’s trying to find another way to justify the continuation of the proceedings.
    2) there is this weirdly phrase ambiguous paragraph in the decision:
    “53. La Chambre note que dans le cadre de la presente affaire, les enregistrements video pourront permettre au Juge Niang d’observer le comportement des temoins 11 l’audience et d’evaluer leur credibilite. Des lors, le Juge Niang devra determiner s’il est a meme, au vu de ces enregistrements,de se familiariser avec le dossier de facon satisfaisante.”
    In a nutshell, this suggests that there is a possibility that Judge Niang may say at some point that the recordings of the proceedings are not sufficient for him to familiarize himself with the case, which might mean at that point that the proceedings should be terminated? Howver, Niang himself does not say that much in his separate opinion, where he suggests that if the case as it stands does not seem clear to him, he might invite the 2 other judges to reopen the debates and call back some witnesses (para. 17).
    This is going to be a total circus…

  10. In the end it depends on what the judge has missed out on. No one needs to be in court to get the full benefit of submissions, unless one wants to ask questions of counsel (which can be done by asking for further, short written submissions or a short hearing). Even as regards the evidence compromises inevitably have to be made in long trials. At any rate in many places the position has now been reached that witnesses only need to give oral testimony if their presence is required for cross-examination – otherwise their statement may be read. Even then, difficulties with availability mean that their evidence may be pre-recorded and then replayed to the court (which indeed, is the nature of what is probably the most common exhibit in a criminal trial – the video record of a police interview). In the end, if further hearings were to be confined to recalling witnesses to testify on matters on which they were cross-examined the first time, the hearings could well be much more confined.

  11. In this case, of course, “what the judge has missed out on” is the entire trial.

  12. Well ‘the entire trial’ obviously is not comprised entirely of viva voce testimony, much less viva voce testimony whose character will require the making of credibility determinations based on demeanour, etc. As to anything else, it is hard to see what difference it makes having the judge there or not.

  13. Indeed, if witnesses are recalled, the situation could well be to Seselj’s advantage. In light of the onus and standard of proof, it’s normally the prosecution that has an interest in preserving the credibility of witnesses – credibility which is potentially compromised every time the witness is require to repeat a fact and thereby given the opportunity to forget, vacillate or recant. Witnesses who have given many written statements or testified previously are just fodder for cross-examination.

  14. Response…
    I suspect that the ICTY’s legacy would be far more badly tarnished if an individual such as Seselj were acquitted for reasons relating to the internal politics of the Tribunal.
    Further, the notion that Judges can rely on a witness’ demeanor is vastly overrated in situations where the judges do not understand the language or culture. Thus, I think it is possible to make a reasoned decision on the basis of transcripts and documentary evidence although I agree that this is not the ideal set of circumstances.

  15. Indeed, whether and to what degree demeanour really does provide a window into someone’s mind is a matter of contention. One might be able to say out of hand  that this new judge is necessarily unable to do their job – if only the Appeals Chamber itself was not so willing to overturn the Trial Chambers’ findings of fact.

  16. Kevin, can you give an example of how you experienced “first-hand in the Karadzic case how unfair the Tribunal can be at times?”

  17. Chris, it may be helpful to start with this older blog post of Kevin Jon Heller. The (controversial) commentaries below it are especially worth the while, and may possibly be more insightful than posting itself:
    http://opiniojuris.org/2009/01/08/my-soda-with-radovan/
     

  18. That the decision was rendered pursuant to Rule 54 (rather than 15 bis) doesn’t change the outcome of the merit analysis. The Vic-President’s order suggested that that the judges apply 15 bis (mutatis mutandis(!) )– but if the judges had done so by ignoring the “part-heard case” language as the “necessary change,” they, of course, wouldn’t have been applying that rule—at least not in any meaningful or credible way. Choosing instead to circumvent that problem w/ 15 bis by applying54 is no less troubling (although this has happened at the Tribunal before).It’s just a different (perhaps more nuanced) way of saying, “The law that really applies is problematic for us, so we’re not going to apply it.” Indeed if the general rule is a viable option whenever more specific rules prove inconvenient, why have any rules other than 54?
     
    My other comment relates to the suggestion that the only issue w/ Niang joining the panel is his (in)ability to assess witness demeanor. In my view, this assessment is insufficiently narrow (and, indeed, at least w/r/t videotaped testimony, there is an argument that this is not an issue). A more concerning matter is that there is no longer a “real” 3-judge panel.  In both common law and continental systems, a greater number of factfinders are used for more serious cases because of the belief that this approach is more likely to result in an accurate outcome than employing a single judge. As I explained in my assessment of Bonomy joining the Milosevic panel, this enhanced outcome is very much dependent upon the deliberative process of equals. Are we meant to believe that the deliberations in Seselj’s case will re-commence w/ each judge on equal footing? Is it really feasible to believe that the new judges views will legitimately test the perspectives of the judges who were actually present throughout the course of the trial (and who have already engaged in deliberations)? If not, that leaves us with a judicial panel of two, (assuming the two original judges agree with one another). If the two original judges disagree, to which one is the new judge likely to defer?
     

  19. Megan,

    Those are both excellent points. Your second one seems to echo Bill Schabas, who questions whether the judges will really start deliberations over (which would mean another couple of years before a verdict) or Niang will simply sign on to whatever the others decide — which would, of course, be fundamentally inconsistent with Seselj’s rights, as you explain.

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