On 3 September 2018, Judge Antonetti (acting as senior Judge at the MICT) issued a decision granting the Mladic defense request to disqualify Judges Meron, Liu and Agius from the Appeals Chamber in light of their involvement in other cases at the ICTY were the criminal responsibility of Mladic was discussed.
I imagine this decision will be criticised by some, but I entirely agree with it. How can one seriously claim that a Judge who issued a judgment where it is clearly indicated that Mladic had genocidal intent or that crimes could not have been committed without his approval, can be deemed to not have already formed an opinion on such a central question at the heart of the Mladic appeal? It seems to be basic common sense to me.
One of the issues was the fact that Judge Meron sat on a couple of appeals where Mladic came up. The disqualification decision makes a distinction between passages in a Appeal Judgment that only refer to and provide an assesment of the reasonableness of the conclusions of the Trial Chamber and passages that seem to express an opinion of the Appeals Chamber directly.
I can see the relevance of the distinction on principle, because, in theory, the fact that an Appeals Chamber finds that a conclusion of an Trial Chamber was not unreasonable, does not mean it agrees with it. However, I think that this ignores the reality of what the Appeals process entails on a psychological level. One is more likely to find as “reasonable” a conclusion that one agrees with and vice versa. Under the guise of an objective standard of review at the appeals level, Appeals Chambers have repeatedly substituted their own determination of the facts under the pretense that the Trial Chamber’s factual finding was not “reasonable”. This need not always be the case, but it is a sufficiently “reasonable” possibility to create a perception of bias in a “reasonable” observer. In those circumstances, I would apply a stricter test than the one Judge Antonetti applied.
The decision concludes with this thought (par. 82, my translation): “By allowing certain Judges to participate in two distinct trials resulting from the same factual pattern when there existed between the case common elements of facts and law, international criminal tribunals have taken certain risks when it comes to impartiality”.
I would have liked to hear more about this. “Certain risks” does not mean anything. Either the Tribunal adopted an unfair practice or it did not. In this sense I would be interested (if anybody out there has done this research already, please share!) to see a mapping of the cases Judges sat on and the factual relationship between such cases. Especially, how does this decision apply to the Karadzic appeal?
I would go even further. I believe that, beyond individual Judges, for some defendants, for example Mladic and Karadzic, their fate was sealed on an institutional level, before their trial even started, given the ample discussion of their role in numerous other Judgments. I suppose this was unavoidable given the nature of the tribunal, and the factual situation it was dealing with, but it does not mean it is not problematic. It raises, beyond fair trial issues, the age-old question of how individual criminal responsibility is approached (and diluted) in system criminality and, ultimately, the question of the capacity of international criminal tribunals to deal with such criminality.
Spreading the Jam 
Hi Douwe –
Thanks for your views. Its easy to criticize the decision because of its author. I do agree with you that the outcome is understandable for the common man on the street. Yet, ICTY case law (and ECtHR case law) has long held that these prior determinations do not offset the assumption of the Judges’ impartiality. Thought behind that is clearly that professional judges – different than eg jurors who may be seen as more easily influencable – can ‘forget’ about prior determinations made on a different set of evidence in a trial where the focus was on the responsibility of someone else.
I am not saying one cannot see the appearance of bias as broadly as Antonetti, but to come with it now is like a coup d’etat. With this standard many Judgments should be invalid really. Antonetti is arguing for a different system. And yes, of course Meron has to be removed from the Karadzic appeal if this standard is followed.
Thanks
D
Typo, Dov, sorry
Dear Dov,
Whether or not “a reasonable observer, properly informed, would reasonably apprehend bias” is indeed a question one can argue about.
However, as noted above, the decision is in manifest contravention to all other decisions concerning partiality filed by the ICTY. In fact, Mladic twice has moved to remove Judge Flügge (Presiding Judge in Tolimir) and Judge Orie (Presiding Judge in number of cases concerning the events that were subject of Mladic’s Indictment) during the course of the Trial. He further moved to remove a number of Appeal Judges, including Agius and Meron, from sitting in an interlocutory Appeal. All of these motions were rejected in accordance with ICTY Jurisprudence.
I can imagine that the Mladic Defence will now file a plethora of motions adressing just that.
I find troubling that Judge Antonetti ruled this all by himself.
Perhaps this can be viewed as judicial Independence but I find that he should have had appointed a Panel of Judges according to Rule 18 (B) (ii) of the Rules of Procedure and Evidence. This is particular true since Antonetti’s decision is not subject to any Appeal 8Rule 18 (B) (iii) of the Rules).
I believe the Prosecution will file a Motion for Reconsideration….
Kind regards
Jacob
Thank you Dom and Jacob for your comments.
I do understand that Judge Antonetti’s position is not in line with prior practice at the ad hoc tribunals. As for the ECHR, I’m no specialist, but the decision does seem to suggest that some ECHR decisions do support the disqualification in such circumstances.
You raise a difficult question, which could be raised with respect to a number of issues in the life of the ad hoc tribunals: is the fact that a practice was repeated over time mean that it cannot be changed, even if it was wrongly decided in the first place?
Should Judge Antonetti have just deferred to past practice in this case to avoid a possible domino effect on other decisions?
I would tend to not think so, whichever perspective is taken.
From the perspective the rights of the Defendant in a particular case, it is irrelevant that a decision might affect other cases and this argument cannot be raised against him.
From the perspective of the institution itself, it is a sign of maturity to accept mistakes and bear the consequences of these mistakes. Hiding one’s head in the sand, for the sake of the fight against impunity cannot be a viable permanent solution, hoping that nobody (especially a “rogue” Judge) will notice.
From the perspective of the Prosecution, I don’t see why they should ask for reconsideration. What do they care what Judges sit on the Appeal? On principle, the three new Judges should be considered just as competent to deal with the Appeal. The OTP has technically not suffered any prejudice from the disqualification decision, so I’m not sure what their argument would be for reconsideration.
The bottom line is that you both seem to agree that it was not unreasonable for Judge Antonetti to conclude that there could be an appearance of bias for a reasonable observer, and that, for me, is all that matters. Other policy considerations should not be a factor in the decision-making process.
Thanks Dov,
Good points. As for what Judge Antonetti could have done if he felt so opposed to the past practice, he could have felt the necessity to have the matter decided by a panel of three Judges. It would have at least been an expression of the difficult situation and avoid that a single Judge single-handedly shatters this long-held practice. You are right of course that this practice is not binding (not AC law as per Aleksovski) but as set out above the matter very much seemed res judicata.
I also dont see how a motion for reconsideration would succeed. The more viable way would be for the OTP to seek appointment of a panel to decide the matter de novo. Even though the rules do not allow for an interloc, ICTY case law provides for such a de novo review in my reading, see e.g. S&Z presidents decision of 7 February 2014.
D
Dear Dov,
Apart from the other comments, an honest application of the ECHR case-law cited by Judge Antonetti would have required him to recuse himself, as there is clear appearance of bias by himself against the disqualified judges due to prior decisions by them overturning his decisions on essential legal and factual matters, second-guessing his legal (?) reasoning (??) in several decisions and judgments. So, for somebody who knows anything about ICTY trials (average observer in this field), it is obvious that Antonetti holds animus against Meron, Agius and Liu – and whether this influences his decision is immaterial; appearance of bias would be enough in this case. The fact that he decided himself the matter supports this conclusion.
Moreover, ECHR case-law (which is inapplicable anyway to ICTY) is not interpreted by any domestic court in Europe as not allowing judges to sit on multiple cases dealing with the same organized crime’s rings/clans/families in subsequent trials – I do not see how this is different here.
Interestingly, if we follow Antonetti’s reasoning, the reference to Mladic et al. in many judgements could have simply been replaced by “other conspirators”, and this – on the basis of such mechanical and absurd reading of ECHR case-law – would have sufficed to shield the three judges from recusal. This is clearly absurd. When professional judges make reference to co-conspirators or other individuals in a judgment, this is not a finding beyond reasonable doubt, and even if it was, does not influence the evidence and its interpretation in subsequent proceedings. More needs to be shown to overcome the presumption of impartiality.
Dear Dov and dear all,
The Prosecution has moved to appoint a panel.
In a 7 September motion it argued that it “has become ‘necessary’ to appoint a panel under Rule 18(B) (ii) because the Prosecution challenges Judge Antonetti’s decision to disqualify Judges Meron, Agius and Liu. The Decision represents a decisive departure from settled law of the international criminal tribunals. The Prosecution’s challenge triggers an automatic referral to a panel of three judges for a de novo review of the Disqualification Applications.”
It further argued that “ICTY and ICTR Appeals Chambers have determined that the ‘if necessary’ trigger is activated in cases where the President/Presiding Judge decides the application him or herself and a party challenges that decision. In such case, the matter must be referred to a three-judge panel (or the Bureau in the case of the ICTR) to conduct a de novo review of the application. This ‘if necessary’ trigger has been retained in Mechanism Rule 18(B)(ii)”.
Judge Meron has already referred the Motion to Judge Masanche as the next Senior Judge who is able to act, (which is interesting since he did not refer the matter to Judge Antonetti).
Thank you for sharing this extraordinary information! I look forward to reading the application and decision by Meron before commenting further…
Yeah, his reasoning for not giving it to Antonetti is because ‘he issued the Impugned Decision’ – so what? Normally its the President’s decision and the President would also decide on a panel referral request. Clearly ultra vires to not give it to Antonetti – but of course he wanted to avoid a situation where Antonetti would refuse to appoint a panel (which I am sure he would have)
Yesterday, Judge Masanche denied the Prosecution request for a de novo review by a Panel of judges. Judges Meron, Liu and Agius are now disqualified subject to any Motion for Reconsideration filed before Judges Antonetti or Masanche (that is what the Prosecution did in the Harhoff case).
The Prosecution has now appealed Judge Masanche’s decision not to Appoint a Panel of judges. Judge Meron, however, referred this Motion to Judge Sekule as the next Senior Judge who is able to act. All of this is very interesting in my view.