The trial of Vojislav Šešelj for crimes against humanity and war crimes is the longest-running case at the International Criminal Tribunal for the Former Yugoslavia.
But the judgment in the case – originally scheduled for 30 October – was cancelled last week, after last month’s dismissal of Judge Frederick Harhoff from the case. Harhoff’s leaked email to colleagues sparked controversy in June, and this was the basis of his dismissal from the Šešelj case – but his dismissal leaves the trial of the former Serbian politician and lawyer in chaos.
The Šešelj case is, by ICTY standards, not a terribly complex one, but Šešelj has been in custody in The Hague for over a decade since his surrender to the ICTY in 2003. The trial commenced in 2007, and has been punctured by controversy. Šešelj can best be described as a problematic defendant. While many defendants at the ICTY conduct their trials in full accordance with court procedure and full respect for the trial process, Šešelj has engaged in several types of disruptive behaviour.
Šešelj’s revelation of confidential information about protected witnesses has seen three separate trials at the ICTY which have each convicted him of contempt of court. The main trial has also been suspended while Šešelj has undertaken hunger strikes. Šešelj has notoriously directed abuse and improper statements towards Judges.
These problems have prolonged the trial.
Indeed, although trial proper was ongoing for over four years, there have only been 175 days of trial proceedings in that time. The case eventually closed in March 2012, and a date for the delivery of Judgment was set for 30 October 2013. This long time frame of a year-and-a-half between close of trial and judgment is concerning in itself, as the case is comparatively simple and (in terms of actual trial days) short. It may be due to the involvement of the Presiding Judge, Antonetti, in another ICTY case which delivered judgment earlier this year (the long and complex multi-accused case of Prlić et al).
However, that judgment date has now been set aside, and there is no certainty about when the judgment will be delivered – and indeed, whether it will be delivered at all. The dismissal of Danish Judge Harhoff from the case leaves only two Judges remaining on the case, an insufficient number.
Harhoff’s dismissal on 28 August came about two months after he sent a letter to 56 of his colleagues in Denmark, making serious allegations about how decisions and judgements are being made at the ICTY. Following this letter being made public, Šešelj filed a motion for Harhoff’s disqualification from his case, and by a majority, a three-Judge panel upheld this. With one Judge dissenting, the panel found that the letter demonstrated an unacceptable appearance of bias of Harhoff towards conviction, and therefore he could not continue as a Judge in this case.
At Harhoff’s request, a new panel is now reconsidering this decision. If it considers the dismissal of Harhoff unwarranted, Harhoff will be able to remain on the Šešelj case. However, for the time being, the Šešelj case is effectively a Judge short.
Usual practice at the ICTY is to appoint a bench of three Judges to hear the case, and to also appoint a “reserve Judge”. The role of this reserve Judge is to be present for hearings and deliberations, but not to offer a vote during decision-making. If, however, one of the appointed Judges is unable to continue their duties, the reserve Judge may then step in to ensure seamless completion of the ongoing trial.
However, there is no such reserve judge in the Šešelj case. In the absence of this, if Harhoff’s dismissal is confirmed, it is unclear what will happen in this long and controversial case. Many commentators agree that there is no obvious way to rectify this situation in a way that would not be inconsistent with Šešelj’s rights. At this stage of the case – after the trial has been concluded, all the evidence has been heard, and it is just the judgment to be written and delivered – it is all but impossible to appoint a new Judge to the case. Such a Judge could not possibly be expected to review the evidence and familiarise themselves with the case sufficiently; in addition, their absence from the entire trial and deliberations would mean their views on witness credibility and veracity of evidence would not be satisfactorily informed.
Yet in the event that this was overlooked and a new Judge was appointed, the time they would need to review the case would significantly delay the delivery of judgment. This is simply not practicable, and would appear to violate the rights of the accused to a fair and expeditious trial.
A retrial which conceivably could last another decade would also be difficult, especially as the ICTY is under instructions from the UN Security Council to wind down its operations. The resources to undertake a retrial of this magnitude would be a significant imposition on a Tribunal whose resources are increasingly limited.
Alternatively, if Harhoff’s dismissal is overturned by the panel of Judges and he is allowed to remain on the case, this is also problematic. There has been a decision of an ICTY panel of Judges which found a reasonable person could view Harhoff as biased to convictions. Even if it is overturned, the mere existence of decision speaks volumes about the perception of bias. It is difficult to see how this could be ignored.
For all these reasons, it is now quite likely that a judgment will never be issued, and that Šešelj may be released without conviction in this case. What this will do for the reputation of the ICTY and its legacy is troubling. While acquittals – after a fair trial – are not necessarily to be feared, a shambolic trial process, allegations of a Judge’s bias towards conviction, and the release of an alleged war criminal after a decade of detention, are certainly a problem for the ICTY.
This latest episode at the ICTY suggests again a system under significant strain. The Harhoff letter itself demonstrated deep cracks in the international legal system. Now, the chaos surrounding the longest case at the ICTY, and the potential for it to be dismissed entirely after a decade of resources being expended, only further shows the troubles plaguing the system. The impact of this on how the ICTY is perceived, both internationally and in the communities in the former Yugoslavia, has the potential to be devastating.
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