Academic journal article Vanderbilt Journal of Transnational Law

Alternate Judges as Sine Qua Nons for International Criminal Trials

Academic journal article Vanderbilt Journal of Transnational Law

Alternate Judges as Sine Qua Nons for International Criminal Trials

Article excerpt

ABSTRACT

When one of the three judges hearing the case against Vojislav Seselj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge--who had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj's case was both procedurally illegitimate and markedly at odds with the ICTY's statutory guarantee of a fair trial. It also explains how ICTY proceedings came to be rendered vulnerable to the havoc created when a judge is lost mid-trial and considers how to mitigate the damage the Seselj decision has wrought upon the reputation of the ICTY. Finally, this Article illustrates how the International Criminal Court is currently destined for its own Seselj moment and contends that the proper way forward is through the liberal designation of alternate judges.

TABLE OF CONTENTS

I.    INTRODUCTION
II.   BACKGROUND
III.  THE OMISSION OF ALTERNATE JUDGES IN THE
      ICTY STATUTE
IV.   REPLACEMENT JUDGES UNDER THE ICTY
      RULES
      A. More Comprehensive Look at Rule 15
      B. The Significance of a Rules-Based
         Analysis
      C. Subsequent Amendments
V.    THE APPLICATION OF NEW RULE 15BIS(D)
VI.   THE INTRODUCTION OF ALTERNATE JUDGES
VII.  THE SESELJ MATTER
      A. The September 2013 Order
         1. Accuracy
         2. The Procedural Misstep
      B. The December 2013 Decision
         1. The Procedural Misstep
      C. The Recent Appeal
      D. Summary
VIII. LESSONS LEARNED
      A. The Significance for the MICT
      B. The Significance for the ICC
         1. Designating an Alternate Judge
         2. Does the Rome Statute Permit
            Mid-trial Judicial Replacements?
IX.   CONCLUSION

"[A]ny trials to which lawyers worthy of their calling lend themselves will be trials in fact, not merely trials in name, to ratify a predetermined result."

--Justice Robert H. Jackson, April 13, 1945 (1)

I. INTRODUCTION

For well over a year, Vojislav Seselj's prosecution for war crimes and crimes against humanity at the International Criminal Tribunal for the former Yugoslavia (2) (ICTY) has been on hold. The delay is designed to allow replacement Judge Mandiaye Niang time to "familiarise himself' with the record of Seselj's more than four-year trial. Although Niang was not present for a single day of the Seselj proceedings, the plan is for him to ultimately form part of the three judge panel that determines whether Seselj should be convicted of serious violations of international humanitarian law. (3)

This Article examines the procedural legitimacy--or illegitimacy--of the decision to continue Seselj's case with a replacement judge and argues that the assignment of Niang to the Seselj case conflicts with the ICTY's statutory guarantee of a fair trial before three independent judges. In so doing, it illustrates how the rights of accused persons at the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (4) (ICTR), have been incrementally sidelined in order to avoid costly and time-consuming re-trials. Establishing the significant harm that the Seselj matter has wrought upon the ICTY's reputation, this Article then considers the steps that the Mechanism for the International Criminal Tribunals (5) (MICT)--the ICTY and ICTR's successor tribunal--should take to mitigate the damage wrought in Seselj. This Article then concludes by demonstrating how ICTY and ICTR precedent in general and the Seselj debacle, in particular, should serve as a cautionary tale for the International Criminal Court (6) (ICC).

II. BACKGROUND

Vojislav Seselj's prosecution for instigating war crimes and crimes against humanity (7) began on November 7, 2007 before ICTY Judges Antonetti, Harhoff, and Lattanzi. …

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