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Thursday, August 29, 2013

Harhoff disqualification: no impact on the Seselj Case? Possibly...

I suggested in my previous post that the disqualification of Judge Harhoff from the Seselj case could mean that the trial would have to start over from scratch, or be terminated because a retrial would violate Seselj's rights.

The decision to disqualify says nothing on this point, and my analysis was based on what I thought was a common sense assessment of the situation, but it does not seem to be borne out by the legal provisions on this issue.

Indeed, Rule 15 of the Rules of Procedure and Evidence provides that:

A Judge may not sit on a trial or appeal in any case in which the Judge has a  personal interest or concerning which the Judge has or has had any association  which might affect his or her impartiality. The Judge shall in any such  circumstance withdraw, and the President shall assign another Judge to the case. 
The last sentence would seem to indicate that a new judge can be assigned, and that things could therefore proceed as planned. I could not find any example of disqualifications at the ICTY (I'm happy for readers to direct me to such cases), nor do I find any help in the ICC legal framework on this matter, so for all intent and purposes, Rule 15 is all I have to go by, and I don't particularly like it.

First of all, a couple of months before the issuance of the judgement, I don't see how a new judge could familiarize himself sufficiently with the case to provide informed opinions on the evidence and the applicable law. If anything, this would most certainly push back the judgement to far ahead in the future so that any findings made in deliberations be revisited with the new judge.

Second of all, Harhoff's lack of impartiality (UPDATE: changed from 'bias') should not just seen in relation to the formal issuance of the judgement on guilt or innocence. It possibly pervaded every step of the proceedings since the beginning, be it in various kinds of decisions, or the way witnesses were asked questions, for example. I don't see how one can consider that the whole process is not tainted. If we were a couple of weeks into the trial, then a case could be made that the bias did not affect the fairness of the proceedings, but so close to the end? I don't find this convincing.

In addition, if that is indeed the solution, then I don't see the point of having the reserve judge procedure (Rule 15ter ICTY RPE). Isn't that to avoid that a trial start from scratch should something happen to one of the judges? Surely, if one could judge appoint a new judge and continue without interruption, then the reserve judge would never be necessary.

All in all, I would therefore be quite dissatisfied should there be no consequences on the actual proceedings of this disqualification. Should the trial chamber proceed in this fashion, it would add a mockery of justice to a mockery of justice.


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  2. Dov, I think you need to make a distinction between actual bias and the appearance of bias. The decision made a positive finding on the latter and stays mostly silent on the former, except for para. 14. That said, it's unfortunate that para. 14 doesn't give a more reasoned opinion as to whether they were holding that Judge Harhoff was actually biased as opposed to only giving the unacceptable appearance of being biased. They're not the same thing. Most of the decision's analysis discusses the appearance of bias only. However, your post gives the impression that the decision held that Judge Harhoff was actually biased, when most of the decision doesn't investigate that issue. Even Judge Liu's dissent understands the majority as holding that there was an appearance of bias only.

    As for successful disqualification motions generally, they are really rare. The only other one I can think of was the disqualification of President Robertson from the SCSL Appeals Chamber for stuff he'd written in a book about the RUF.

  3. Again, point taken, with two thoughts.

    1) The whole decision creates this confusion you denounce, not just para. 14, for example when the majority claims that the letter indicates a reluctance to apply the jurisprudence of the tribunal. That's not just appearance. In any case, para. 14 being the operative finding of the decision, it does seem to be the conclusion of the panel.

    2) Ultimately, I don't think the distinction makes a difference to my post. For one, the reason that "appearance of bias" is frowned upon just as much as bias is that once it is established, any actual action of the person in the course of the proceedings, up to the judgement, might be tainted by the perceived bias. Second of all, the goal of this bias or perception of bias test is to establish one and only thing, the lack of impartiality. in this sense, I agree that I should be more precise in my post and use that term rather than the term bias.

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  5. I don't believe there are any ICTY or ICTR cases where a judge has been disqualified for bias, although there have been a number of unsuccessful attempts. One recent example is in the Prlic case, where the defence made a motion requesting that a three-judge panel be convened to adjudicate on allegations of Judge Prandler's bias because of his previous connections to a UN official who authored reports that were admitted into evidence ( Prlic also had his application for leave to appeal this decision denied.

    However, in the Sesay case at the Special Court for Sierra Leone, Judge Robertson was in fact disqualified for the appearance of bias because of his previous writings on the RUF. His fellow Appeals Chamber judges ruled that he could not hear "those motions involving alleged members of the RUF for which decisions are pending, in this Chamber; and (ii) Cases involving the RUF if and when they come before the Appeals Chamber." That said, he was allowed to continue to sit as an appellate judge on cases not involving members of the RUF.

  6. Just a small remark on the possible consequences of this unfortunate situation: while Seselj was in detention quite long, it was mainly due to his choice of how to run his case, as well as of his being repeatedly convicted of contempt - I actually think that most of his detention thus far could be credited to his contempt convictions, let alone the disruptive behaviour during trial and his choices while representing himself. In light of this, a retrial (partial or otherwise) could actually be justified and proper.

  7. @Guy

    A few fact to keep in mind... Seselj surrendered voluntarily in 2003 momentarily after the indictment was made public. The start of the trial was IIRC scheduled for late 2006 due to the lack of preparedness by the prosecution plus the administrative overload at the Hague.

    Seselj's active "delay" in the form of a hunger strike intended to enforce his right to represent himself, only postponed the trial by one year to late 2007. Also, since the tribunal agreed to this IMHO rather reasonable demand and agreed that they had erred in refusing him that right, they cannot use this one-year delay against him.

    The prosecution also caused a completely unnecessary delay to the proceedings with barely a few hours left of their allotted time due to alleged (but never proven) "witness intimidation". This occurred at a time when there was barely any prosecution witness testimony left to be heard or affected by alleged intimidation and it faced quite firm opposition from the presiding judge who was overruled by his two colleagues. This caused a substantial delay in the proceedings.

    Then, finally, when the prosecution's proceedings did formally come to an end, Seselj simply rested his case without spending one single minute on calling any witnesses of his own. Had he wanted to stall or delay, surely he would have prepared an extensive witness list like all other defendants instead of being the (almost) unique instance of a defendant who rests his case without calling any witness at all? The court proceedings could by this measure alone still have been ongoing without it having constituted a "delay" by Seselj of any kind.

  8. Good points - however, I was not focusing on the right to speedy trial, but rather on the right to be presumed innocent and therefore free. Seselj could have requested provisional release to remedy some of these violations, but never did so during trial, to my knowledge. My point was more that he can hardly at this point protest for lengthy imprisonment, since many of these years in the UNDU can be counted against his contempt convictions, and not detention during trial as such.

  9. His contempt of court convictions are merely retroactive instances of imprisonment. Strictly speaking, he has not been deprived of his freedom one single day of his 10.5 year incarceration due to any of these contempt of court convictions and won't be unless these sentences surpass the actual time he has physically spent in incarceration.

    One would also have to question whether the contempt of court proceedings can be viewed independently from his extended incarceration. Would he at all be a case for consecutive contempt of court proceedings if he were not a sitting duck type of target for the prosecution right there in the Hague? It's highly questionable, given the rather obscure and indirect nature behind his contempt of court charges. Would he himself have this consciously defiant attitude regarding the issue involved, without the prior treatment faced at he hands of the prosecution and tribunal officials? That's also highly questionable, at least one would in the name of justice have to give him the benefit of the doubt.

    Prior to these contempt of court proceedings, the position of the prosecution was instrumental in depriving him his right to represent himself, the prosecution also wasted substantial time in what could best be described as administrative trickery and stalling tactics such as a rather random attempt to merge his case with other accused, the attempt to disqualify Harhoff from the proceedings in 2008 (the irony), etc.

    His defiance has a history which involves the prosecution and other court officials. If I were in Seselj's place, while I most certainly would not act the same as he, I'm not sure how cooperative I would feel either. Given that his position in the court has not been one of power and given that he has not been in the position to independently set the agenda of the proceedings, I would not be inclined judge his behavior there and the length of his incarceration independently of the behavior of the other parties involved.