tag:blogger.com,1999:blog-6279241844677447368.post7684423702433340377..comments2024-01-23T18:04:35.144+01:00Comments on Spreading The Jam (moved to www.dovjacobs.com): Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theoriesDov Jacobshttp://www.blogger.com/profile/14088064995374954241noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-6279241844677447368.post-82807996813698022472013-09-24T20:02:18.163+02:002013-09-24T20:02:18.163+02:00.....but mostly due to Seselj's disruptive beh........but mostly due to Seselj's disruptive behaviour .....<br />Just read the transcripts of the first four years, how the judges dragged their feet, and then tell again, that mostly Seselj has been responsible <br />http://www.icty.org/case/seselj/4#trans<br />Better you read all.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6279241844677447368.post-26371344282689847122013-09-09T12:57:40.464+02:002013-09-09T12:57:40.464+02:00Dear Dov,
Strange, in my opinion (as a legal pro...Dear Dov, <br /><br />Strange, in my opinion (as a legal professional) that a law professor pays so little attention to the suggested possibility that the disqualification panel has not seen Antonetti’s report and Harhoff’s memorandum.<br /><br />Wouldn’t that be a major due process issue?<br /><br />In your domestic legal system, I am quite sure that the mere fact that these documents, part of the file transferred to the panel by Judge Agius’s referral decision, were not mentioned in the panel’s disqualification decision, would lead the Hoge Raad to quash such a decision, without even being bothered by the question whether the panel judges had seen and taken into consideration those documents.<br /><br />Your easy going reply to Michael that “their actual content is nothing to write home about” is, forgive me the language, unworthy of a law professor.<br /><br />I sincerely hope that this somewhat harsh language will irritate you enough to react and give a more reasoned opinion on the fact that the panel judges did not refer at all to even the existence of the report and the memorandum which allows for the presumption that they did not see or looked at them.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6279241844677447368.post-10933068514999033902013-09-05T20:19:30.001+02:002013-09-05T20:19:30.001+02:00Dear Michael,
Thank you for your comments. Just a...Dear Michael,<br /><br />Thank you for your comments. Just a few thoughts.<br /><br />I agree that the Chamber will not be bound by Agius not contemplating a mistrial. However, there has to be some consequence of applying Rule 15bis, which does not contemplate such a solution.<br /><br />I also agree that the real issue was the unethical behaviour of Harhoff and that pure and simple removal as an administrative sanction would have been preferable than this disqualification procedure.<br /><br />As for the "sour taste" left from not mentioning the report or the Harhoff memorandum, the panel should have maybe formally referred to them, but their actual content is nothing to write home about. The Antonetti report is useless. The Harhoff memorandum, made public today, is a little more convincing, but not that much and I don't think it changes anything. Dov Jacobshttps://www.blogger.com/profile/14088064995374954241noreply@blogger.comtag:blogger.com,1999:blog-6279241844677447368.post-8050574878099807092013-09-05T13:32:50.998+02:002013-09-05T13:32:50.998+02:00Dear all,
the mere fact that Judge Agius as VP ma...Dear all,<br /><br />the mere fact that Judge Agius as VP may think that a mistrial is not feasible is irrelevant in my view. I doubt he has the power to declare a mistrial, as he is not seised of the trial, but merely of the disqualification proceedings. If he really constitutes a new chamber by appointing a replacement (despite his expressed concerns about the fairness of such a move), that Chamber will have jurisdiction to declare a mistrial, not the VP. They are not bound by his views and may still do so. The idea of habeas corpus for abuse of process that seems to underlie the mistrial option would, however, appear to have been disavowed by the ICTY/R AC ever since Barayagwiza No. 2. But then Seselj has been in custody a trifle longer than the former. So they may yet have a change of heart.<br /><br />I have my doubts whether one really can say that Judge Harhoff is biased vis-à-vis him, as the majority said, the evidence can be regarded as somewhat tenuous. The real issue here is that Harhoff - in my view, having been a professional judge myself - acted in an unethical manner and violated the standards of proper judicial conduct as a sitting judge, no matter whether his allegations are true. The discussion might more profitably be about removing him from the bench altogether as a disciplinary measure - but then who would do that? The UNSC or GA? This shows the consequences of not having rules on judicial discipline, and as I previously argued (Bohlander, Michael (2007). The International Criminal Judiciary Problems of Judicial Selection, Independence and Ethics. In International Criminal Justice - A Critical Analysis of Institutions and Procedures. Bohlander, Michael London: Cameron May. 325-390) this matter was not unknown at the time of drafting the Statute. The way it looks to me, the fact that the disqualification means he has no more trial in which to participate and thus as an ad-litem judge has to leave the ICTY anyway may have been used as a hidden removal decision. <br /><br />In any event, Harhoff has rightly pointed out that he has a right to be heard in the process of disqualification and any absence in the majotiy decision of an express consideration of his statement and that of Antonetti leaves a sour taste.<br />M Bohlandernoreply@blogger.comtag:blogger.com,1999:blog-6279241844677447368.post-12253858161481399902013-09-05T12:22:12.594+02:002013-09-05T12:22:12.594+02:00Dear Guy,
Accepting the panel decision as standin...Dear Guy,<br /><br />Accepting the panel decision as standing for the sake of discussion, I indeed do think that it is the only acceptable outcome. Restarting the trial from the start would extend the process for too long. Issuing the judgment with a new judge would be unfair in my opinion, but might be the solution adopted, with a small delay for the new judge to familiarize with the case.<br /><br />In any case, whatever my opinion is, I think on principle that it is not normal that the option is not even considered...<br /><br />As for Seselj's own requests, I recall that there were some such motions. I found this information for example: http://jurist.org/paperchase/2011/10/icty-holds-seseljs-rights-to-fair-trial-not-violated.php<br /><br />there might be others.Dov Jacobshttps://www.blogger.com/profile/14088064995374954241noreply@blogger.comtag:blogger.com,1999:blog-6279241844677447368.post-10241576013394514992013-09-05T09:26:04.159+02:002013-09-05T09:26:04.159+02:00Dear Dov,
It seems that you think that the only w...Dear Dov,<br /><br />It seems that you think that the only way to solve the situation would be to quash the proceedings and release Seselj. I would be interested in knowing why exactly you think so. The proceedings have been long, but mostly due to Seselj's disruptive behaviour and contempt proceedings which necessarily had to interrupt the main case. On top of that, and as far as I know, during trial Seselj never requested to be set free, so there could hardly be a violation of his right not to be detained too long.<br />Thanks!Guynoreply@blogger.com