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Alternate Judges as Sine Qua Nons for International Criminal Trials

The following blog post summarizes Alternate Judges as Sine Qua Nons for International Criminal Trials (48 Vand. J. Transnat’l L. 67 (2015)) by Megan A. Fairlie.

For well over a year, Vojislav Šešelj’s prosecution for war crimes and crimes against humanity at the International Criminal Tribunal for the former Yugoslavia (ICTY) has been placed on hold. The delay is designed to allow replacement Judge Mandiaye Niang time to familiarize himself with the record of Šešelj’s more than four-year trial. Although Niang was not present for a single day of the Šešelj proceedings, the plan is for him to ultimately form part of the three-judge panel that determines whether Šešelj should be convicted of serious violations of international humanitarian law.

For Seselj’s fellow Serbs, the decision to appoint a replacement judge during the deliberations phase augmented the notion of the ICTY as a biased institution more interested in closing its doors than in achieving justice.  It likewise contributed to an ongoing critique of the glacial pace of ICTY proceedings, as the more than 17,000 pages of trial transcript could take years to review. Concerns were also raised by longstanding supporters of the ICTY who questioned the wisdom and authority behind the decision to empower a replacement judge to adjudicate the guilt of a person whose trial he didn’t attend.

This Article examines the procedural legitimacy—or illegitimacy—of the decision to continue Šešelj’s case with a replacement judge. It argues that the assignment of Niang to the Šešelj case conflicts with the ICTY’s statutory guarantee of a fair trial before three independent judges. In so doing, it illustrates how the rights of accused persons at the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), have been incrementally sidelined in order to avoid costly and time-consuming re-trials. Establishing the significant harm that the Šešelj matter has wrought upon the ICTY’s reputation, this Article then considers the steps that the Mechanism for the International Criminal Tribunals (MICT)—the ICTY and ICTR’s successor tribunal—should take to mitigate the damage wrought in Šešelj.

This Article then illustrates why ICTY and ICTR precedent makes a compelling case for the liberal designation of alternate judges at the International Criminal Court (ICC). As ICTY and ICTR practice makes clear, the ICC should expect that a certain number of its trial judges will need to be replaced mid-trial for unexpected reasons. This fact, coupled with the ICC’s failure to designate even a single alternate judge to date, suggests that it is only a matter of time before an expensive and time-consuming ICC prosecution comes to an abrupt halt. At that stage, the ICC will be faced with an unhappy alternative of either repeating the mistakes in Šešelj or commencing a costly and time-consuming rehearing.

In order to avoid these unattractive options, this Article contends that the ICC ought to seize the opportunity to learn from the precedent set by the ICTY and ICTR. In so doing, with some cost and otherwise little effort, the ICC will be able to avoid many of the reputational hits sustained by these slightly older institutions while delivering a more efficient version of justice.

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