Category Archives: Seselj

A busy week in ICL: STL Judge rebels on contempt, ICC stays clear of Gaza Flotilla and ICTY releases Seselj

It seems that the international tribunals have waited for one of the rare occasions when I’m mostly offline for travel purposes to issue some interesting decisions. Indeed, I am currently attending the ICTR Legacy conference in Arusha. If I were not as humble as I am, I would suggest that they did so to avoid that I blog about these decisions…

I hope to write more about these decisions when I return to The Hague, but this is what happened this week, in a nutshell. I’m sorry for the paucity of hyperlinks, but it’s not convenient right now to add more.

1) The ICC OTP has decided not to open an investigation in the Gaza Flotilla incident, following the referral it got from the Comoros a few years back. On a rapid reading of the decision, I broadly agree with the outcome. The OTP has stayed clear from the concerns I expressed at the time on the policy consequences of framing a situation in such a narrow way as the Comoros did. Two brief comments: 1) I’m not entirely convinced by the OTP determination of the relevant armed conflict for the purposes of war crimes. 2) I’m not sure that the OTP needed to enter in the comparison with Abu Garda in relation to gravity because that was a case, not a whole situation. But more on this later, hopefully.

2) Second of all, in a really interesting development, a contempt judge at the Special Tribunal for Lebanon has refused to follow an appeals panel decision to extent contempt jurisdiction to legal persons. Readers of this blog will already know what I thought of the terribly argued appeals decision. Judge Lettieri echoes my concerns about the limits of teleological interpretation and its violation of the principle of legality. In a long decision, Judge Lettieri systematically refutes the reasoning of the Appeals Panel and ultimately considers, not only that he is not bound by the decision, which was technically adopted in a different case, but that he probably had a obligation not to follow it, to ensure the consistency of international law on the issue. It’s a fascinating process to follow and I wait for the next Appeals Panel response to this very amazing example of judicial dialogue.

3) Finally, today, the Trial Chamber in the Seselj case at the ICTY has ordered, proprio motu, the provisional release of the accused for health reasons. Again, readers of this blog will have followed the events which led to the case dragging on, with, after the removal of Judge Harhoff, the nomination of a new judge in November 2013, meant to take the time to familiarize himself with the case. While he initially asked for 6 months, this period was recently extended to June 2015 at the request of Judge Niang, this information having been conveniently drowned in the 2014 ICTY Annual Report. In relation to provisional release, earlier this year, Seselj refused a proposal for provisional release… so this time around, the Chamber simply did not ask for his opinion, nor that of the Prosecutor! It appears that Judge Niang has dissented, but his dissent is not available yet.

All in all, three interesting decisions which will most certainly be the subject of some commentary in the coming day, here, as elsewhere. Stay tuned!

The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

The year started with a bang a couple of weeks ago when a differently composed Appeals Chamber bench in Sainovic claimed that the Appeals Chamber in Perisic had erred in considering that specific direction was part of the elements of aiding and abetting liability. There is no need in coming back at this point on the substance of the discussion which has been debated to death in the past year.

In any case, in light of Sainovic, the ICTY OTP has now filed for reconsideration in the Perisic case itself. As noted by Kevin Jon Heller, there is absolutely no legal basis for such a motion, as it would really be a stretch to consider that the Sainovic judgment would constitute a “new fact” allowing for reconsideration. Sainovic is only evidence that Judges at the ICTY have decided to fight their personal battles in their judgments, which is most certainly something to be concerned about, but not a reason for reconsideration.

The motion is however perfect for teaching purposes, because it summarizes in a few lines the confusion about the object and purpose of ICL and how it has been used to trump defense rights.

Using a decision relating to the possibility of reconsideration in the exceptional case of a “miscarriage of justice”, the Prosecutor reasons in the following way:

Reconsideration is the only option for the Appeals Chamber to rectify the manifest miscarriage of justice to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families resulting from the erroneous Perisic decision.

This reasoning is disturbing in a number of ways. Not only does it reflect the general victim-centred reasoning of some people in ICL, as pointed out by Kevin, it illustrates more specifically how there is an increased confusion between the actual rights of the actual parties to the proceedings and the metaphorical “rights” of those having an interest in the trial. The concept of miscarriage of justice is not a moral metaphysical concept meant to cater to the disappointment of court observers, be they the direct victims of crimes. It is a specific concept meant to protect the rights of the accused against possible abuses in the judicial process.

It is therefore particularly disgraceful that one of the organs of the Court would try and use a concept created to protect the accused, against the accused. This is of course not a new practice of international tribunals. Examples abound of decisions where a right of the defense was opposed to the accused to defeat the exercise of another right ( for eg, right against self-incrimination raised against Norman at the SCSL when he himself wanted to testify before the TRC, and more generally the right to be tried without undue delay sometimes raised by judges when defendants ask for more time to prepare for their defense).

This is an unfortunate new episode in this Perisic saga (and its Harhoff spinoff). With most movies, the sequels tend to drop in quality compared to the first one in the series, and this is no different. Some might say that recent decisions, such as in Seselj, where the case is plowing on despite the disqualification of Harhoff, or motions such as the one discussed here, tarnish the legacy of the ICTY, I don’t share this somewhat implicit optimistic account of the legacy in the first place.

Unfortunately, recent media-gathering examples such Perisic, Seselj or Taylor (or Kenya at the ICC), are merely symptomatic of the normal workings of international tribunals. A more accurate way to put it would be that the courts are now just polishing the coffin that is the legacy of international justice, at least in relation to the protection of the rights of the defense.

More on this most certainly in the Katanga Judgment to be released on Friday

Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.

This is a lot of information to digest, but just a couple of preliminary thoughts. I don’t have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I’m not sure this will go anywhere, but we will have to see.
  • The Order from Judge Agius (acting President of the Tribunal)
The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because “in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis”, without much further explanation.
The relevant parts of this rule are the following:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the  proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G). 

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President  shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

I’m not entirely convinced by the application of this rule to the current situation. For one, it’s obviously not applicable. As Judge Agius acknowledges, this cannot be “strictly speaking be described as part-heard”. This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.

This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!

Also, I’m not sure that the combination of Rule 15 and Rule 15bis was really thought through by the Vice-President. Indeed, the result of the order, is that, based on the fact that Rule 15 does not say how to proceed in the case, leads the Judge to ignore the one clear thing that Rule 15 does provide for: the assignment of a new judge! This is clear and unambiguous language of the Rule, and comes with no conditions, such as consent of the accused or report of the other judges. This is additional support for the idea that Rule 15bis is not meant to apply “mutatis mutandis” to disqualification situations. This is the kind of “creative” reading of the Rules that has plagued the practice of the tribunals since the outset. This is all the more disturbing given that the Judges themselves wrote the RPE. It is not acceptable that they then ignore them!

Finally, should 15bis indeed be applied, it put forward a strange concept of consent. Basically, Seselj should consent to the proceedings continuing with a new judge… except if his consent is ignored! I’m not entirely sure how that amounts to consent…

So now, we have to wait for the opinion of the remaining judges on the bench and Seselj’s own decision. I’m not sure there will be more suspense on the latter…

  • The requests for clarification from Judges Antonetti, Lattanzi and Harhoff
Both requests for clarification rely on the same basis: the fact that the disqualification decision not does mention, or seem to take into account, the Report done by the Presiding Judge of the Chamber (Antonetti) and the memorandum submitted by Judge Harhoff in his own defense. It is true that the panel decision does not mention them, so it is not necessarily an unreasonable request for clarification.

It does denote, at least incidentally, a rift between the judges at the Court, which might be indicative that the low morale among the staff actually reaches up to the judges… Indeed, I don’t really see the point of Judge Antonetti and Lattanzi involvement, other than to make a gesture of support for Judge Harhoff. It could be that they just want to “save” their case, but in that case, it would show a level of short-sightedness because there is no way that a Judgment issued in the Seselj case now with Judge Harhoff’s name on it could be seen as legitimate.

It is also interesting to note that Judge Harhoff seems to want to defend himself on the substance of his allegations! He therefore claims that

My private letter of 6 June 2013 was sparked by my dilemma in the discovery of being a Judge in a international Court which – possibly – had been influenced by external sources. My letter does not suggest that generals and high ranking military officers must be convicted irrespective of the evidence and my personal comments in the letter are not in any way related to the Accused who is not a military commander and has not been charged with having directed or commanded combatants during the armed conflict

First, I would disagree as to what the letter “suggests”. It’s been amply discussed since June what kind of errors, approximations and shortcuts that it contains in describing the applicable law of the ICTY. A little provocatively, one could say that this would warrant his removal from the bench, not for partiality, but for mere incompetence. What is more, Judge Harhoff is clearly trying to minimize that now.  His letter, while initially speaking of military leaders, concludes with general thoughts on any leader.

But what I mostly find incredible is that Judge Harhoff would now reiterate his allegation of external influence. As Kevin John Heller suggested recently, this is probably the more egregious and unprofessional comment in the letter, and I don’t understand why he would restate it here… in his own defense…

Judge Harhoff concludes his request by saying that “The decision to disqualify me from the Seselj case has a direct impact on my personal and professional commitments ot the Tribunal as a Judge”. While I have some sympathy for what Judge Harhoff must be going through right now, it is his unprofessional letter that had an impact on his career, not the disqualification decision. Irrespective of what one thinks of the disqualification decision (see some expressions of doubts from Marko Milanovic here and Jens Ohlin here), the end result of removing Judge Harhoff from office is certainly the correct one. That he thinks that he could continue working at the ICTY is beyond me.

Whatever happens now, one can be sure that this saga is not over and that the nightmare scenario I predicted will continue to unfold at the ICTY.

Harhoff disqualification: no impact on the Seselj Case? Possibly…

I suggested in my previous post that the disqualification of Judge Harhoff from the Seselj case could mean that the trial would have to start over from scratch, or be terminated because a retrial would violate Seselj’s rights.

The decision to disqualify says nothing on this point, and my analysis was based on what I thought was a common sense assessment of the situation, but it does not seem to be borne out by the legal provisions on this issue.

Indeed, Rule 15 of the Rules of Procedure and Evidence provides that:

A Judge may not sit on a trial or appeal in any case in which the Judge has a  personal interest or concerning which the Judge has or has had any association  which might affect his or her impartiality. The Judge shall in any such  circumstance withdraw, and the President shall assign another Judge to the case. 

The last sentence would seem to indicate that a new judge can be assigned, and that things could therefore proceed as planned. I could not find any example of disqualifications at the ICTY (I’m happy for readers to direct me to such cases), nor do I find any help in the ICC legal framework on this matter, so for all intent and purposes, Rule 15 is all I have to go by, and I don’t particularly like it.

First of all, a couple of months before the issuance of the judgement, I don’t see how a new judge could familiarize himself sufficiently with the case to provide informed opinions on the evidence and the applicable law. If anything, this would most certainly push back the judgement to far ahead in the future so that any findings made in deliberations be revisited with the new judge.

Second of all, Harhoff’s lack of impartiality (UPDATE: changed from ‘bias’) should not just seen in relation to the formal issuance of the judgement on guilt or innocence. It possibly pervaded every step of the proceedings since the beginning, be it in various kinds of decisions, or the way witnesses were asked questions, for example. I don’t see how one can consider that the whole process is not tainted. If we were a couple of weeks into the trial, then a case could be made that the bias did not affect the fairness of the proceedings, but so close to the end? I don’t find this convincing.

In addition, if that is indeed the solution, then I don’t see the point of having the reserve judge procedure (Rule 15ter ICTY RPE). Isn’t that to avoid that a trial start from scratch should something happen to one of the judges? Surely, if one could judge appoint a new judge and continue without interruption, then the reserve judge would never be necessary.

All in all, I would therefore be quite dissatisfied should there be no consequences on the actual proceedings of this disqualification. Should the trial chamber proceed in this fashion, it would add a mockery of justice to a mockery of justice.

Internal Investigation Opened against members of the Prosecutor’s office at the ICTY

The conduct of the OTPs of international tribunals has often been questioned with regards to witnesses. I recently blogged about the stay of proceedings in the Lubanga trial at the ICC, following the Prosecutor’s refusal to follow the court order requiring him to provide a list of certain intermediaries whose conduct in relation to witnesses had been questioned by the defense. At the Special Court for Sierra Leone, there have been allegations that prosecution witnesses were bribed to obtain their testimony.

In relation to this, I have just become aware of this order from Trial Chamber III in the Seselj case, ordering an independent amicus curiae investigations into allegations by the defendant that the Prosecutor exercised pressure on a certain number of witnesses to secure evidence against him.

The motion for contempt proceedings against, among others, Carla del Ponte was initially filed confidentially in 2007 and the Chamber had ordered “ordered a stay for purposes of ruling on the Motion for Contempt until the conclusion of the trial in order to avoid delaying the start of the trial”. However, in light of new evidence, the Chamber decided to exercise its proprio motu powers to reconsider its decision.

The Defense provided a list of alleged misconduct by the Prosecution, as illustrated in the following paragraph:

17. The Statements allege as fact that the Prosecution indeed contacted these persons and that interviews were indeed conducted by investigators working for the Prosecution. As such, the Statements mention sleep deprivation during interviews, psychological pressuring, an instance of blackmail (the investigators offered relocation in exchange for the testimony they hoped to obtain), threats (one, for example, about preparing an indictment against a witness if he refused to testify), or even illegal payments of money. According to certain Statements, the testimony produced from the interviews with the investigators from the Prosecution was not (or almost never) re-read by the persons signing it. In the Statement signed by [redacted], there is even an account of him allegedly signing the first page and the members of the Prosecution allegedly signing his initials on the other pages themselves. In the Statement signed by [redacted], there is mention that he allegedly had an interview with the members of the Prosecution in a public place. Lastly, in the Statement signed by [redacted], it is mentioned that he was allegedly poisoned.

 In light of this, the Chamber held that:

29. This information is taken quite seriously by the Chamber, which refuses to allow any doubt to fester concerning a possible violation of the rights of the Accused and concerning the investigation techniques employed by certain members of the Prosecution in this case.

 and therefore “the Chamber finds that an amicus curiae ought to investigate the Motion for Contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution.” The investigator should be designated by the Registrar (which hasn’t done it yet, to the best of my knowledge) and will be given 6 months to investigate.

Given the gravity of the alleged conduct, one would also expect the proceedings to be stayed until the conclusion of the investigation, but apparently this has not been ordered.

Hat-tip to Priyanka