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.