ICTY—UN Amends Tribunal Statute

Late last week, the United Nations Security Council announced that it had unanimously adopted Resolution 1660 (2006), amending the International Criminal Tribunal for the Former Yugoslavia (ICTY) Statute to create the new, appointed position of reserve judge.^[1] This resolution affects articles 12 and 13 quater of the Statute. The motivation for this rule change is to pre‑empt lengthy disruptions in trials while the ICTY attempts to execute its completion strategy.^[2]

In pertinent part, article 12 now provides that:
The Secretary-General may, at the request of the President of the International Tribunal appoint, from among the ad litem judges elected in accordance with article 13ter, reserve judges to be present at each stage of a trial to which they have been appointed and to replace a judge if that judge is unable to continue sitting.^[3]

Article 13 quater specifies that:
In the event that a reserve judge replaces a judge who is unable to continue sitting, he or she will, as of that time, benefit from the provisions of paragraph 1 above [granting all powers and immunities accorded to the ad litem judges].^[4]

The new provisions address only the need for a permanent replacement for a sitting judge. Absences of shorter durations are still addressed under Rule 15bis of the ICTY Rules of Procedure and Evidence.^[5]

The resolution was adopted pursuant to the request of ICTY President Fausto Pocar of Italy. This rule change is intended to ensure that active trials will not have to be restarted if a sitting permanent judge is unable to continue hearing the case. The reserve judge, who is required to be “present” at each phase of the trial, would simply ascend to the seat vacated by the incapacitated permanent judge and the trial would continue—presumably without significant prejudice to the defendant.

The question is to what extent this administrative efficiency causes prejudice to defendants in fact. Each trial is conducted solely by a three‑judge panel acting as trier of both fact and law. As such, it is essential that the judges be physically present for all phases of the trial and that they hear all of the evidence first‑hand. This factual question, rather than procedural due process concerns that would most likely arise in U.S. federal cases, is likely to be the basis of potential challenges to the new reserve judge scheme.

Background
In the summer of 2004, the international crimes trial of Slobodan Milosevic was interrupted by the resignation and subsequent death of Judge Richard May.^[6] At that time, it was necessary to hold hearings in order to secure the consent of the defendant to continue the trial with a substitute judge under Rule 15bis(C).^[7] Based on a lack of affirmative response, the matter was referred to the Trial Chamber to decide whether it was in the interests of justice to continue without the defendant’s consent.^[8]

Under the new rules, there is no longer a procedural or administrative need for consent or evidentiary hearings.

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[1] Security Council Amends Former Yugoslavia Tribunal Statute, Unanimously Adopting Resolution 1660 (2006), United Nations Security Council Press Release SC/8653 [hereinafter UN], Feb. 28, 2006. See also Security Council Amends Tribunal Statute, ICTY Press Release AM/MOW/1045e [hereinafter ICTY], Mar. 1, 2006. The UN Security Council is authorized to amend the Tribunal Statute in accordance with its Chapter VII powers.
[2] ICTY supra note 1. “This measure assists the Tribunal in its efforts to complete its work by avoiding situations in which a specific trial would have to be restarted if one of the judges on the bench is unable to continue.”
[3] UN supra note 1 at art. 12 annex (5).
[4] UN supra note 1 at art. 13 quater annex (4), brackets mine. During their terms of appointment, ad litem judges are appointed to specific trials and have the same powers as permanent judges, including adjudicative powers.
[5] International Criminal Tribunal for the Former Yugoslavia Rules of Procedure and Evidence [hereinafter Rules], Rule 15bis (A). “If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business, unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than five working days.” See also Order Under Rule 15bis to Sit in the Absence of a Judge, Prosecutor v. Milosevic, IT-02-54-T, May 6, 2005.
[6] Message of Judge Theodor Meron, President of the ICTY, Upon the Death of Sir Richard May, Retired Judge of the Tribunal, ICTY Press Release MF/P.I.S./867e, July 1, 2004.
[7] Rules supra note 4 at Rule 15bis(C).
[8] The Trial Chamber implemented its ruling in the affirmative in its Order Replacing a Judge in a Case Before a Trial Chamber, Prosecutor v. Milosevic, IT‑02‑54‑T, June 10, 2004.