First a short anecdote. Yesterday, I posted a comment regretting that nothing was going on in the Seselj case… apparently a few hours after an order from ICTY VP Agius appointing a new judges! This is because I had planned the post in advance and programmed it to go online while I was on a trans-atlantic plane (and therefore not in position to see the order). The joys of technology and the luck of the draw…
This being said, despite the (deserved) irony of some of my readers on me being irrelevant, I’m quite happy this happened, because I can now say: “I told you so”. Indeed, as I said in my post yesterday, there were two main possible explanations for the delay: 1) lack of agreement between the remaining judges of the Trial Chamber and 2) difficulty in finding a new judge.
When reading the order, it is obvious that both are true. Indeed, Judge Agius clearly refers to Judge Antonetti and Lattanzi’s opposition to the use of Rule 15bis (B)-(D) to deal with the Seselj situation, indicating the tension that seems to exist within the Court. Moreover, the appointed Judge, Judge Niang, is not a current ICTY judge, clearly showing that no judge wanted to be on the case. As an aside, I’m wondering what the procedure is exactly to get Judge Niang on an ICTY Bench, given that he was recently appointed to the ICTR, not the ICTY!
Beyond that, the real issue here is the confirmation that the process going on is in scandalous disregard to legal reasoning and the rights of the defense. It is not necessary to rehash my views on the unconvincing use of Rule 15bis(B) by Judge Agius and its inadmissible result of not leaving open the option of just putting an end to the proceedings. I discussed these issues here, here and here. Kevin Jon Heller also discusses this issue in light of yesterday’s order (here and here) pointing out that, not happy to erroneously apply Rule 15bis(B) to (D), Judge Agius then ignores its conditions of application! For example, it appears from the order that Seselj has still not be consulted on the issue, which is quite extraordinary.
I am the first to acknowledge that the current situation is not easy for the ICTY. Judge Harhoff put his institution in quite a messy place and there are probably no real satisfactory way to get out of it. However, it seems that everybody involved, whether Harhoff who still thinks he did nothing wrong, Antonetti and Agius, is doing his best to make sure that the worst possible legal solution is reached. It’s quite a shame.
Spreading the Jam 
Judge Niang was sworn-in as an ICTY Judge on Tuesday, 29 October. Swearing-in was public and subject of a press release…
Dear Laetitia,
Thank you for pointing this out. But, the press release I found on the ICTY website seems a little ambiguous and unclear: “Judge Mandiaye Niang from Senegal was sworn in to the joint Appeals Chamber of the ICTR and ICTY on 30 October 2013 following his appointment by the Secretary-General of the United Nations as permanent judge of the International Criminal Tribunal for Rwanda (ICTR) effective from 11 September 2013”. This seems to indicate that 1) Judge Niang was appointed to the ICTR, not ICTY and 2) that he was sworn in to the Joint ICTY/ICTR appeals chamber, not to to ICTY Trial Chambers. Now, this might mean that he can sit on an ICTY Trial, but you have to admit that this is not crystal clear.
In any case, it does not change my main point: no current judge at the ICTY is being put (accepted to be put?) on the case, and a new judge is appointed to a messy case, with absolutely no experience or knowledge of the situations being dealt with by the ICTY, which I find quite astonishing, especially if the objective is to have this dealt with in a timely manner…
And, if we’re going to be prickly about details, the swearing in was 29 October, not 30 October…
Dear Dov,
There is no “joint” ICTY/ICTR Appeals Chamber. The Appeals Chambers are legally different but they are made up of the same judges. So if a Judge is appointed to the ICTR Appeals Chamber, he or she automatically becomes a Judge of the ICTY (and vice versa). See the relevant Articles in the ICTY and ICTR Statutes on the composition of Chambers. Now, Rule 27 (C) of the ICTY Rules of Procedure and Evidence allows for any Judge of the Tribunal to be temporarily assigned to a different Chamber (for instance to sit on a specific case). So the ICTY President could assign Judge Niang (as an ICTY appeal Judge) to sit on the Seselj trial (in addition to assigning him to the Popovic appeal bench). Hope this clears this up.
First of all, I think you mean Rule 15 bis (B)-(D) and not Rule 15. Then, I am not entirely sure I understand the criticism of the Agius order. One can discuss whether 15 or 15 bis should apply and I can see arguments for both. But does it really matter? As Agius pointed out it is ultimately up to the TC judges to decide how to proceed and which Rule to apply. So I was just wondering whether the discussion and criticism is a bit premature.
Dear LD, thank you for pointing out the typo and for your comment. Three reactions. 1) I think it matters on a very basic level, because it is important to be precise in applying the correct law to the correct facts 2) I would be very happy if you were right, and the newly composed Chamber decided to just ignore Agius and end the proceedings 3) unfortunately, given the tone of Antonetti’s public statements, this is unlikely to happen in my view. He really wants to issue the Judgment, and I’m sure that it was made sure that Judge Niang was on the same page as he is before he was assigned. But I might be wrong…
Dear Bob,
Thank you for the clarification on the legal framework allowing Judge Niang to sit on the the Seselj bench.
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Let’s go off the topic little bit – Is it acceptable to have imprisoned innocent man for almost 11 years- what is exactly the ICTY case of university professor Dr. Vojislav Seselj (because he is considered innocent until proven guilty, isn’t he)? Or, to rephrase my question, would be it possible in any Western democracy to hold in prison somebody for such long period without sentencing him – or the case would be dropped due to compromised trial in many irregular instances, the latest- by the judge Harhoff, and Dr. Seselj immediately released? Dr. Seselj is here practically tried for the verbal offense because during the war in FRY he did not hold any government or military position, and for many people in Serbia, (but abroad as well) he is considered to be a political prisoner of the new EUro-Atlantic order… I would appreciate your opinion (from the author, and the commentators as well, because I will present the part of this discussion to the readers of our blog (very popular in Serbia) Facebookreporter.org. We are just learning that judge Antonetti decision to hold Mr. Seselji ni prison, was influenced by the political circumstances in Serbia, not by the facts relevant to his case (if they couldnt’ produce them for 11 years, how that will happen now- maybe “by using 3D printing” technology?). Thanx in advance. FBR editor M. Novakovic
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