Guest Post: Kontorovich on Missing Judges as a Design Choice

Guest Post: Kontorovich on Missing Judges as a Design Choice

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

What should an international court do when the judges hearing a case are not around to decide it, as has happened on the ICTY in the Seselj case that Kevin has written about?

The death or serious illness of an international judge during the pendency of a case is an entirely foreseeable matter. International criminal trials are quite long (an average of three years from the start of trial to judgement). At the ICTY, the length can be as long as nine years. The average age of judges on the Court is 62 at appointment. See the Realities of International Criminal Justice for these and other figures.

Given that proceedings are long and judges old, an empty seat on the bench should, from an institutional perspective, not be a surprise. The best way to deal with this, if one is concerned about the issue, is the designation of alternate judges. This happened at Nuremberg, and is provide for in Art 74(1) of the Rome Statute, and in the Special Courts for Sierra Leone and Lebanon, where they shall be present at each stage of the trial or appeal to which he or she has been designated.”

So the lack of a provision for such supernumeraries is a design choice or error. Certainly alternates burden an already expensive system. On the other hand, alternates are a known form of “insurance” for the continuance and integrity of international criminal trials.

So the question is who should bear the risk if the Tribunal does not “purchase” such insurance and the feared contingency occurs – the defendant or the Court (and perhaps justice). The general principle of strict construction in favor of the defendant in criminal matters would suggest imposing the costs on the Court, and yes, on international justice, which is more risk-averse (diversified across multiple cases).

Most fundamentally, because it is the officers of the Court that can best avoid such problems (by expediting proceedings) the consequences should fall on them. Of course, one does not wish to encourage hurried proceedings. So if the cost of such errors is seen as unacceptably high, alternates should be provided for in the future, or the rules requiring judicial presence relaxed.

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Goran Bjedov
Goran Bjedov

I must correct Professor Eugene Kantorovich. There is no need to point to the Art 74(1) of the Rome Statute of ICC, neither to practice of Special Courts for Sierra Leone and Lebanon which provides for alternate judges.  Rule 15 ter of the Rules of evidence and procedure of ICTY provides for Reserve Judge. This Rule was adopted Mart 29/ 2006. Seselj surrendered voluntarily in February 2003 but his trial did not begin until November 2007. So the Tribunal is responsible because reserve judge was not assigned. So defendant may ask for mistrial. In this case he must be acquitted. He has no choice but to request mistrial because of misconduct of The Court. In this case defendant does not waive his double jeopardy objection to a retrial. In Oregon v. Kennedy, 456 U.S. 667, 676 (1982) Court was of the opinion, with witch professor is familiar, that the bar of double jeopardy prohibits the case from being retried only if the prosecutor commits misconduct which is intended to goad the defendant into moving for a mistrial. So what in case when misconduct of a Court? A fortiori, this rule must be applicable in such a case.     Goran… Read more »

Robert Clarke

Interesting reasoning, but criminal procedure isn’t and never has been about risk distribution in the same way as e.g. certain torts. Consider a circumstantial case where the only eye witness is the accused. Without doubt, the person that is best placed to avert the “risk” of a miscarriage of justice is the accused, who could do so by testifying and revealing what they witnessed. However, it’s axiomatic that we do not require them to bear that “risk” by compelling them testify or allowing adverse inferences to be drawn against them if they don’t.

Megan Fairlie
Megan Fairlie

  Having previously considered in depth how the use of substitute judges discredits the UN war crimes tribunals, I’d like to validate some of the points made and make a few clarifications.   First, Professor Kontorovich is correct to note the ICTY’s design flaw and the fact that the issue of alternative judges should have been on everyone’s radar at the time of the Tribunal’s creation. Not only did Nuremberg precedent put relevant players on notice regarding the need for such judges, but a 1993 Report by American Bar Association’s Task Force on the ICTY specifically highlighted the lacuna in the Tribunal’s Statute.   The prospect of assigning “reserve judges,” persons who are present for each stage of the trial, did not arise at the ICTY until 2006 (Rule 15 ter, referenced above by Goran). Contrary to Goran’s suggestion, however, there was no violation of 15 ter in Seselj’s case. That provision provides only for the possibility of a reserve judge; whether one is to be assigned to a particular case is a matter of Presidential discretion.   Finally, lest the ICC approach be viewed as the gold standard in comparison to ICTY 15 ter, its provision (Art.74) has a… Read more »