Last Friday, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia decided to continue proceedings in the trial of Vojislav Šešelj with a new judge. Here is the decision. Mandiaye Niang of Senegal has been designated to replace Fred Harhoff, who was recently disqualified as a consequence of the indiscrete publication of an apparently confidential letter that he sent to several dozen friends.
But the trial is really over. The closing arguments were heard in March 2012, nearly two years ago. Before Judge Harhoff’s departure, the Trial Chamber had already announced that the judgment in the case would be issued on 30 October. Vojislav Šešelj has been in pre-trial detention for more than a decade. The only precedents that I know of for such lengthy pre-trial detention in any national legal order can be found in countries like Iran and North Korea.
This is not the first time that a substitute judge has taken over in mid-trial. Rule 15bis of the Rules of Procedure and Evidence allows for this. But there has never been such a substitution after the hearings and submissions were closed and when the Trial Chamber had already announced a date of judgment.
Presumably the three judges on the old Trial Chamber had already made up their minds about the outcome of the case. Moreover, it is unthinkable that the two remaining judges might have been inclined to acquit; if so, how could they countenance such a procedure that will delay the verdict by perhaps another two years?
Now, the fiction is that they will start all over again with the new judge. In his separate opinion attached to Friday’s judgment, Judge Niang says he will start to familiarize himself with the transcripts, the video recordings and so on, and that he will take a minimum of six months to do this. He also says that if he is unclear about things, he will ask his colleagues to reopen the hearing, for new argument by the parties and even new testimony.
Then he is to declare whether he thinks it possible, under the circumstances, to proceed further. But there must also be the strong suspicion that if he has made up his mind to review the materials for six months, that he has also decided that the venture is feasible and that he will complete the task.
Then, will the three judges begin a second eighteen-month phase of deliberations? Or will Judge Niang either add his name to the final decision that must already have been in a definitive draft form when Judge Harhoff departed, or in the alternative decide to add a dissent? But that is not the same thing as saying that the judge takes over at the start of the deliberations, as is being contended.
If the Trial Chamber sticks with the implausible claim that it is indeed beginning the deliberations from the start, with the new judge, Šešelj should be looking for a judgment in his case sometime in mid-2016. If they move much faster, it will only strengthen the suggestion that the Substitute Judge was brought in to rubber stamp what the other two judges had decided.
In his separate reasons in last Friday’s decision, Judge Antonetti, who is the presiding judge in the Trial Chamber, says that it should be possible for ‘an international judge’ to become familiar with the material very quickly. (Judge Niang has great international experience, but it does not seem that he has never before been an international judge.) Judge Antonetti noted how Judge Bonomy, in the Milošević trial, was able to take over after the close of the prosecution phase of the trial and review the file in a matter of weeks. I don’t quarrel with the fact that Judge Bonomy was able to master the material quickly. He is a brilliant judge, with much trial experience.
What I cannot understand however is why highly skilled and efficient international judges who seem able to take command of the facts of a case so quickly will nevertheless take so long to issue a judgment. Why are they so fast with one task and so slow with the other?
There has never been an adequate explanation at the ad hoc tribunals (or at the International Criminal Court, for that matter) for the lengthy delays that are required from the time of closing argument to the issuance of judgment. At Nuremberg, the judges issued a very fine judgment in less than two months from the close of the trial itself. It took Judge Cassese and his team about the same amount of time to issue the Tadić Jurisdictional Decision in October 1995. Admittedly that was not a trial decision, but it was a complex matter involving difficult and novel issues of law. In the first trials at the ad hoc tribunals, the judgments were issued months, not years, after the close of arguments by the parties.
If it is possible for a Substitute Judge to enter a case in this manner, joining only for the deliberations, we might ask why we need three judges to preside over the trial at all? Why not simply confer the gathering of evidence and the hearing of oral submissions by the parties to one judge, putting everything on videotape. Then, when it is all finished, bring in a couple of judges at the end to speed read everything and watch the You-Tube proceedings? This would surely be faster and cheaper than what the international courts and tribunals do now. Hopefully, the bean counters in the United Nations Secretariat and the Assembly of States Parties are paying attention.