[UPDATE: This post was written a few hours prior to the order by Judge Agius actually appointing a new judge. more on the order here…]
As regular commentators of international law, we usually rush to comment on what the tribunals say and do. But we rarely comment on what they don’t do. I think it’s fitting, around the date that the Judgment (or Jugdgement) in the Seselj case was meant to be delivered to ask a simple question: what is happening ?
Readers might recall that following a private email circulated to friends earlier this year, Judge Harhoff from Danemark was disqualified from the Seselj case at the end of August, with the motion for reconsideration rejected at the beginning of October. You can read about most episodes of how this started here and here, and on the consequences of the disqualification here, here and here.
Since then, nothing has happened. Now that the disqualification has been confirmed, I suppose that the order issued at the beginning of September by ICTY VP Agius applies. According to that order, we should have consultations between the judges and Seselj on whether to rehear the case or continue the proceedings, before a possible assignment of a new judge, irrespective of Seselj’s consent. I already commented on the fact that this order is scandalous because it takes putting an end to the proceedings off the table and makes a complete joke of Seselj’s opinion on the issue.
This being said, I’m wondering what is taking so long. Already, I don’t understand how it took so long to issue the rejection of the reconsideration request. Moreover, I can’t see imagine that it would be so time consuming to consult with Seselj and decide to proceed (or not) in order for a new judge to be appointed. Especially as, from the tone of his communications at the time, it appears that Judge Antonetti is quite keen on moving forward. And it can’t be that there would be disagreement between him and Judge Lattanzi, the other remaining judge on the Chamber, because their request for clarification seemed to indicate that they were on the same page.
Given this state of affairs, there are 3 possible explanations for this delay :
1) Things are really this slow at the ICTY, so I really shouldn’t be making a fuss. Could be depressingly true.
2) There is a policy discussion going on at the higher levels of governance at the tribunal with a possible dissagreement between the Chamber and the Presidency for example on whether to continue the trial. Given the current acrimony between judges at the Court, this would not necessarily be surprising.
3) Everybody agrees to go ahead with the proceedings, but they cannot find a judge to replace Harhoff. If this is the case, I would perfectly understand that no judge would want to get entangled in this nightmare situation, 10 years down the road, with arguably very little time to get familiarized with the file.
Of course, you could tell me that I should be happy that there is such a delay which might mean that things are not running smoothly in the aftermath of the disqualification. Indeed, “if not running smoothly” means that there will be bumps on the road to the scandalous result of continuing the proceedings and issuing the Judgment, then that is a good thing I suppose…
If readers have any thoughts (or knowledge) of what is actually going on inside the black box of the ICTY, please don’t hesitate to share them in the comments section.