Alternate Judges as Sine Qua Nons for International Criminal Trials

Abstract

When one of the three judges hearing the case against Vojislav Šešelj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge — who has not spent a single day participating in the proceedings — has familiarized himself with the trial record. This article demonstrates why the plan to proceed with a new judge is both procedurally illegitimate and markedly at odds with the ICTY’s statutory guarantee of a fair trial. It also establishes how it is that Tribunal proceedings came to be rendered vulnerable to the havoc created when a judge is lost mid-trial and establishes why something must be done to attempt to mitigate the damage the Šešelj decision has wrought upon the reputation of the ICTY and the still nascent field of contemporary international criminal justice. Finally, this piece illustrates how the International Criminal Court is currently destined for its own Šešelj moment and contends that the proper way forward is through the liberal designation of alternate judges.

Keywords: ICTY, ICTR, ICC, Seselj, 'Alternate Judges,' 'Substitute Judges,' 'Fair Trial,' 'Judicial Independence,' 'Judicial Impartiality', Collegiality