[Dr. Megan Fairlie is Associate Professor of Law at Florida International University]
A brief consideration of 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 re-hearings. Initially, part-heard cases could not continue with a replacement judge without the accused’s consent. Then, as “consent was only a safeguard,” the rules were amended to permit the two remaining judges to independently decide when continuing a part-heard case “would serve the interests of justice.”
Now, the Tribunal’s mismanagement of its first ever judicial disqualification has taken the matter to a new low, with Vojislav Šešelj’s responsibility for war crimes and crimes against humanity set to be decided by three judges, one of whom joined the case nearly two years after closing arguments were heard.
Although apparently united in their aim to see that the case continues no matter what, neither the Tribunal’s Acting President nor Šešelj’s newly constituted Trial Chamber can plausibly explain why allowing a new judge to enter the picture part-way through deliberations is in any way tenable under the ICTY Rules or compatible with Šešelj’s statutory guarantee of a fair trial.
Back in September, the Acting President decided that when a new judge replaces a disqualified one pursuant to Rule 15, Rule 15 bis should govern the procedures to be followed post-replacement. The latter rule permits ongoing proceedings to continue with a replacement judge pursuant to the accused’s consent or by judicial fiat. Problematically, however, 15 bis is limited to part-heard cases, a description that hardly pertains to the “more advanced stage” of Šešelj’s proceedings. As a result, the September order concluded that the provision ought to be applied mutatis mutandis.
The Šešelj facts, however, illustrate why this proposal was deeply flawed.
