by Alex Fielding, @alexpfielding on twitter

Marko Milanovic over at EJIL Talk! has posted an excellent analysis of the decision by a specially-convened ICTY Chamber (a 2-1 decision with Judge Liu dissenting) to disqualify Judge Harhoff for bias in the Vojislav Seselj case.  The decision is available here and for context, here is our earlier post on the letter that led to Judge Harhoff’s disqualification.  So what happens now?

Photo Credit: ICTY

1. Seselj Retrial?

As Marko notes, the Seselj Trial Chamber had no reserve judge, and therefore a re-trial seems like the only option. Seselj has already spent 10 years in detention and there are serious fair trial concerns if he were to start over under the ICTY branch of the Mechanism for International Criminal Tribunals (which has a renewable four year mandate that started in 2012). How long must a trial last before it becomes a violation of the fundamental right to a fair trial within a reasonable time? The UN will surely not be happy with the prospect of funding and extending the ICTY’s mandate solely because of a Seselj retrial.  Seselj could even file a motion for compensation based on his extensive period of detention and the trial’s collapse.

2. Appeal/Reconsideration of the Majority Decision of the Specially-Convened Chamber

UPDATE: My friend Jacob Nubel has correctly noted that Rule 15(A) provides that “[t]he decision of the panel of the three Judges shall not be subject to interlocutory appeal” and that the only recourse for the Prosecution would be a motion for reconsideration which must establish a “clear error of reasoning” in the decision.

In its response to the motion for disqualification, the Prosecution argued that the “high standard for disqualification had not been met” and the allegations of bias are “speculative”. They would foreseeably reiterate these arguments, and bolster them with Judge Liu’s strongly worded dissent, to argue for a “clear error of reasoning” in the decision.

3. The Stanisic and Zupljanin Trial Judgement and Judge Harhoff’s Future

The majority cites two reasons for disqualifying Judge Harhoff for the “appearance of bias”. First, Judge Harhoff’s letter improperly referred to a “‘set practice’ of convicting accused persons without reference to an evaluation of the evidence in each individual case”.  Second, this appearance of bias was “further compounded by Judge Harhoff’s statement that he is confronted by a professional and moral dilemma, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal.”

Given the general nature of the bias in the Seselj decision, it is hard to envisage a future international criminal case where Judge Harhoff could sit without encountering the same problems. By this same standard, the Stanisic and Zupljanin Trial Judgement, which he signed as a sitting judge on the 27 March 2013, would also presumably be tainted with bias.  While Judge Harhoff’s letter was only sent on 6 June 2013, he may well have held these same views prior the Stanisic and Zupljanin Trial Judgement, especially in light of his criticism of the Gotovina and Markac Appeal Judgment (dated 16 November 2012) and the Perisic Appeal Judgement (dated 28 February 2013). As Dov Jacobs has noted, the Stanisic defence has filed a motion before the Appeals Chamber to admit Judge Harhoff’s letter as new evidence, although I can’t see how this would be grounds for a review of the trial judgement since the trial judgement is not “final” while an appeal is pending.

This decision is  huge news for the ICTY, and another massive (fatal?) setback in the Seselj saga. Now to see what the extent of the fall-out will be…