Guest Post: W(h)ither now the reputation of the ICTY?

[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. Indeed, one need only cursorily consider the fairness implications of introducing a new judge to a completely heard case to appreciate that the “part-heard case” requirement serves as a critical procedural safeguard. Consequently, its omission could scarcely be said to advance the aims of “fairness and transparency” as the September order claimed. To the contrary, the proposal suggests that the ICTY is “a rogue court with rigged rules.”

Remarkably, this impression was only compounded by the Presiding Judge’s swift rejection of the Acting President’s plan.  According to the Presiding Judge, applying Rules 15 and 15 bis in conjunction amounted to “playing around” with the Rules, as 15 bis (“Absence of a Judge”) “concerns an entirely different situation” than 15 (“Disqualification of Judges”). But a fair reading of the rules and some familiarity with their history draws that unsupported conclusion into doubt.

As I’ve explained in detail elsewhere, when the ICTY judges first drafted the Tribunal’s Rules, they expressly rejected a U.S proposal that would have permitted the unrestricted replacement of a disqualified or recused judge. Instead they decided that when a judge was unable to continue sitting for any reason in a part-heard case, the case would be reheard unless the accused consented to continuing the proceedings (the safeguard now subject to judicial override). Importantly, this provision initially appeared in Rule 15 until it was moved verbatim into then-new Rule 15 bis.

Admittedly, the secretive nature of the Tribunal’s rulemaking process always leaves some space for argument about legislative intent. Nevertheless, the text of the consent requirement, its initial placement in Rule 15 and its word-for-word transfer to a new rule governing absent judges (which, indeed, disqualified judges are) suggest that Rules 15 and 15 bis ought to be applied together.

As a result, the newly constituted Trial Chamber’s recent decision  to proceed with the case once the new judge “has finished familiarising himself with the record” ought to have—at a minimum—thoughtfully addressed the alleged non-applicability of Rule 15 bis. Instead, the majority opinion doesn’t even refer to the rule, a glaring omission that is not saved by the fact that the decision draws its authority from Rule 54, the “General Rule.”

Indeed, even assuming that 15 bis does not directly apply, the limit it places upon the use of substitute judges in all other situations should have been considered. In essence, in order to defensibly continue the proceedings pursuant to a vague power to issue orders “as may be necessary for the …conduct of the trial,” it ought to have been incumbent upon the Chamber to explain why this outcome—which would have been foreclosed had the replacement judge been appointed for any reason other than disqualification—was somehow justified under the circumstances.

This, of course, it could not have convincingly done. The Trial Chamber’s explanations for why the assignment of a new judge at the deliberations stage “does not represent an obstacle to the continuation of proceedings” are in no way connected to any sui generis aspect of judicial disqualifications. Instead, the decision notes that the new judge may review video recordings and that witnesses may be recalled, ordinarily available options with which the plenary were well aware when they opted to limit 15 bis to part-heard cases. The not-so-subtle message is that the decision is simply not concerned with procedural integrity.

Even without these problems, and assuming the new judge was to fulfill the herculean task of timely studying the mountains of evidence that Kevin describes here, fair trial problems would undoubtedly persist. In effect, the end result would not be a “real” three-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.

As Harry Edwards explains, finding the right answer is made more likely when “‘until a final judgment is reached, judges participate as equals in the deliberative process– each judicial voice carries weight, because each judge is willing to hear and respond to differing positions.” Yet, is it really feasible to believe that the new judge’s views will legitimately test the perspectives of the judges who were actually present throughout the course of Šešelj’s trial? If anything, this runs counter to the established practice of deferring to trial judges who—precisely because they were present throughout the course of the trial—are presumed in a better position to assess the facts than judges who later review court records.

Of equal importance, the two remaining judges have already engaged in more than a year of deliberations regarding Šešelj’s criminal responsibility. As the judgment of the formerly constituted Trial Chamber was set for the end of October, it seems fair to assume that these two judges have made at least significant headway towards forming opinions about Šešelj’s liability. In theory, of course, the new judge could contribute to the deliberative process by challenging some of these notions. But social science studies suggest an opposite outcome: members new to a group are inclined not to challenge existing members but, rather, to act in conformity with them even when doing so requires suppressing their own beliefs.

What then becomes of the statutory requirement for a judgment rendered by a majority of the Trial Chamber especially, for example, if the two original judges disagree? Whatever way the new judge decides, serious questions will arise regarding the trial’s fairness and legitimacy. Of course, these concerns are only relevant if deliberations actually begin anew and the new judge was not in fact “brought in to rubber stamp what the other two judges had decided.”