Adding Fuel to Milosevic's Fire: How the Use of Substitute Judges Discredits the UN War Crimes Tribunals
51 Pages Posted: 21 Nov 2013
Date Written: 2005
In February 2004, Judge Richard May, then the presiding member of the three-judge panel appointed to adjudicate the guilt or innocence of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, informed the Tribunal of his intent to step down from his leading role in the proceedings. Slightly more than one month later, the two remaining judges decided to continue the trial proceedings by inserting a completely new member into the judicial panel. In making this determination, the judges acted without the consent of the accused, finding their authority in the Tribunal’s judge-made Rules of Procedure and Evidence, in a provision that did not exist at the time that the proceedings against Milosevic began. This article endeavors to assess the fairness of that provision, both generally and in its application in the Milosevic case. In so doing, it advances the theory that substitute judges may not be capable fact finders in their own right. In addition, this work contends that such judges are placed in a position that makes them particularly vulnerable, not only to coercion from forces outside of the Tribunal, but also to undue influence from within the judicial establishment. Accordingly, it is posited that the use of substitute judges potentially threatens the fair trial rights of the accused and may very well serve to undermine the goal of reaching accurate judicial determinations.
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