Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.
I'm not entirely convinced by the application of this rule to the current situation. For one, it's obviously not applicable. As Judge Agius acknowledges, this cannot be "strictly speaking be described as part-heard". This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.
This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!
Also, I'm not sure that the combination of Rule 15 and Rule 15bis was really thought through by the Vice-President. Indeed, the result of the order, is that, based on the fact that Rule 15 does not say how to proceed in the case, leads the Judge to ignore the one clear thing that Rule 15 does provide for: the assignment of a new judge! This is clear and unambiguous language of the Rule, and comes with no conditions, such as consent of the accused or report of the other judges. This is additional support for the idea that Rule 15bis is not meant to apply "mutatis mutandis" to disqualification situations. This is the kind of "creative" reading of the Rules that has plagued the practice of the tribunals since the outset. This is all the more disturbing given that the Judges themselves wrote the RPE. It is not acceptable that they then ignore them!
Finally, should 15bis indeed be applied, it put forward a strange concept of consent. Basically, Seselj should consent to the proceedings continuing with a new judge... except if his consent is ignored! I'm not entirely sure how that amounts to consent...
So now, we have to wait for the opinion of the remaining judges on the bench and Seselj's own decision. I'm not sure there will be more suspense on the latter...
But what I mostly find incredible is that Judge Harhoff would now reiterate his allegation of external influence. As Kevin John Heller suggested recently, this is probably the more egregious and unprofessional comment in the letter, and I don't understand why he would restate it here... in his own defense...
Judge Harhoff concludes his request by saying that "The decision to disqualify me from the Seselj case has a direct impact on my personal and professional commitments ot the Tribunal as a Judge". While I have some sympathy for what Judge Harhoff must be going through right now, it is his unprofessional letter that had an impact on his career, not the disqualification decision. Irrespective of what one thinks of the disqualification decision (see some expressions of doubts from Marko Milanovic here and Jens Ohlin here), the end result of removing Judge Harhoff from office is certainly the correct one. That he thinks that he could continue working at the ICTY is beyond me.
Whatever happens now, one can be sure that this saga is not over and that the nightmare scenario I predicted will continue to unfold at the ICTY.
This is a lot of information to digest, but just a couple of preliminary thoughts. I don't have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I'm not sure this will go anywhere, but we will have to see.
- The Order from Judge Agius (acting President of the Tribunal)
The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because "in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis", without much further explanation.
The relevant parts of this rule are the following:
(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the remaining Judges of the Chamber shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of all the accused, except as provided for in paragraphs (D) and (G).
(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an accused withholds his consent, the remaining Judges may nonetheless decide whether or not to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken from the decision to continue proceedings with a substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.
I'm not entirely convinced by the application of this rule to the current situation. For one, it's obviously not applicable. As Judge Agius acknowledges, this cannot be "strictly speaking be described as part-heard". This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.
This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!
Also, I'm not sure that the combination of Rule 15 and Rule 15bis was really thought through by the Vice-President. Indeed, the result of the order, is that, based on the fact that Rule 15 does not say how to proceed in the case, leads the Judge to ignore the one clear thing that Rule 15 does provide for: the assignment of a new judge! This is clear and unambiguous language of the Rule, and comes with no conditions, such as consent of the accused or report of the other judges. This is additional support for the idea that Rule 15bis is not meant to apply "mutatis mutandis" to disqualification situations. This is the kind of "creative" reading of the Rules that has plagued the practice of the tribunals since the outset. This is all the more disturbing given that the Judges themselves wrote the RPE. It is not acceptable that they then ignore them!
Finally, should 15bis indeed be applied, it put forward a strange concept of consent. Basically, Seselj should consent to the proceedings continuing with a new judge... except if his consent is ignored! I'm not entirely sure how that amounts to consent...
So now, we have to wait for the opinion of the remaining judges on the bench and Seselj's own decision. I'm not sure there will be more suspense on the latter...
- The requests for clarification from Judges Antonetti, Lattanzi and Harhoff
Both requests for clarification rely on the same basis: the fact that the disqualification decision not does mention, or seem to take into account, the Report done by the Presiding Judge of the Chamber (Antonetti) and the memorandum submitted by Judge Harhoff in his own defense. It is true that the panel decision does not mention them, so it is not necessarily an unreasonable request for clarification.
It does denote, at least incidentally, a rift between the judges at the Court, which might be indicative that the low morale among the staff actually reaches up to the judges... Indeed, I don't really see the point of Judge Antonetti and Lattanzi involvement, other than to make a gesture of support for Judge Harhoff. It could be that they just want to "save" their case, but in that case, it would show a level of short-sightedness because there is no way that a Judgment issued in the Seselj case now with Judge Harhoff's name on it could be seen as legitimate.
It does denote, at least incidentally, a rift between the judges at the Court, which might be indicative that the low morale among the staff actually reaches up to the judges... Indeed, I don't really see the point of Judge Antonetti and Lattanzi involvement, other than to make a gesture of support for Judge Harhoff. It could be that they just want to "save" their case, but in that case, it would show a level of short-sightedness because there is no way that a Judgment issued in the Seselj case now with Judge Harhoff's name on it could be seen as legitimate.
It is also interesting to note that Judge Harhoff seems to want to defend himself on the substance of his allegations! He therefore claims that
My private letter of 6 June 2013 was sparked by my dilemma in the discovery of being a Judge in a international Court which - possibly - had been influenced by external sources. My letter does not suggest that generals and high ranking military officers must be convicted irrespective of the evidence and my personal comments in the letter are not in any way related to the Accused who is not a military commander and has not been charged with having directed or commanded combatants during the armed conflictFirst, I would disagree as to what the letter "suggests". It's been amply discussed since June what kind of errors, approximations and shortcuts that it contains in describing the applicable law of the ICTY. A little provocatively, one could say that this would warrant his removal from the bench, not for partiality, but for mere incompetence. What is more, Judge Harhoff is clearly trying to minimize that now. His letter, while initially speaking of military leaders, concludes with general thoughts on any leader.
But what I mostly find incredible is that Judge Harhoff would now reiterate his allegation of external influence. As Kevin John Heller suggested recently, this is probably the more egregious and unprofessional comment in the letter, and I don't understand why he would restate it here... in his own defense...
Judge Harhoff concludes his request by saying that "The decision to disqualify me from the Seselj case has a direct impact on my personal and professional commitments ot the Tribunal as a Judge". While I have some sympathy for what Judge Harhoff must be going through right now, it is his unprofessional letter that had an impact on his career, not the disqualification decision. Irrespective of what one thinks of the disqualification decision (see some expressions of doubts from Marko Milanovic here and Jens Ohlin here), the end result of removing Judge Harhoff from office is certainly the correct one. That he thinks that he could continue working at the ICTY is beyond me.
Whatever happens now, one can be sure that this saga is not over and that the nightmare scenario I predicted will continue to unfold at the ICTY.
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