Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

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.

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!

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.

Internal Investigation Opened against members of the Prosecutor's office at the ICTY

The conduct of the OTPs of international tribunals has often been questioned with regards to witnesses. I recently blogged about the stay of proceedings in the Lubanga trial at the ICC, following the Prosecutor's refusal to follow the court order requiring him to provide a list of certain intermediaries whose conduct in relation to witnesses had been questioned by the defense. At the Special Court for Sierra Leone, there have been allegations that prosecution witnesses were bribed to obtain their testimony.

In relation to this, I have just become aware of this order from Trial Chamber III in the Seselj case, ordering an independent amicus curiae investigations into allegations by the defendant that the Prosecutor exercised pressure on a certain number of witnesses to secure evidence against him.

The motion for contempt proceedings against, among others, Carla del Ponte was initially filed confidentially in 2007 and the Chamber had ordered "ordered a stay for purposes of ruling on the Motion for Contempt until the conclusion of the trial in order to avoid delaying the start of the trial". However, in light of new evidence, the Chamber decided to exercise its proprio motu powers to reconsider its decision.

The Defense provided a list of alleged misconduct by the Prosecution, as illustrated in the following paragraph:

17. The Statements allege as fact that the Prosecution indeed contacted these persons and that interviews were indeed conducted by investigators working for the Prosecution. As such, the Statements mention sleep deprivation during interviews, psychological pressuring, an instance of blackmail (the investigators offered relocation in exchange for the testimony they hoped to obtain), threats (one, for example, about preparing an indictment against a witness if he refused to testify), or even illegal payments of money. According to certain Statements, the testimony produced from the interviews with the investigators from the Prosecution was not (or almost never) re-read by the persons signing it. In the Statement signed by [redacted], there is even an account of him allegedly signing the first page and the members of the Prosecution allegedly signing his initials on the other pages themselves. In the Statement signed by [redacted], there is mention that he allegedly had an interview with the members of the Prosecution in a public place. Lastly, in the Statement signed by [redacted], it is mentioned that he was allegedly poisoned.

 In light of this, the Chamber held that:

29. This information is taken quite seriously by the Chamber, which refuses to allow any doubt to fester concerning a possible violation of the rights of the Accused and concerning the investigation techniques employed by certain members of the Prosecution in this case.

 and therefore "the Chamber finds that an amicus curiae ought to investigate the Motion for Contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution." The investigator should be designated by the Registrar (which hasn't done it yet, to the best of my knowledge) and will be given 6 months to investigate.

Given the gravity of the alleged conduct, one would also expect the proceedings to be stayed until the conclusion of the investigation, but apparently this has not been ordered.

Hat-tip to Priyanka