The Final Nail in the ICTY’s Coffin
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.
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.