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.