Another serious deficiency in the way the Hague Tribunal works.
One of the more questionable features of ICTY judicial practice is that there is no wall of separation between the Trial and Appellate chambers. That means that judges are simply rotated between the two chambers. The same individual may be a trial judge in one case and appellate judge in another. There is no physical separation between the two ICTY chambers. The same set of judges are alternately appointed to both, and they all eat together and socialize in the same cafeteria because both functions of the judicial branch of the Tribunal are located in the same building.
This anomaly was noted by Prof. Michael Scharf:
“Boutros-Ghali had also insisted on separation of the trial and appellate chambers. ‘Each judge would serve only in the chamber to which he or she was assigned.’ However, the procedure for selecting judges did not distinguish between trial and appellate judges. It was left to the judges to work out which of them would serve in which chamber. Naturally, they all wanted to serve in the more—in their mind—prestigious appellate court. They worked out an arrangement, according to which an assignment would be for an initial period of one year. After that, they would rotate on a regular basis. Trial and appellate judges are supposed to be kept separate so that judges of the same rank don’t review one another’s work.” Under the ICTY’s rotation principle, however, according to Scharf, “judges might be hesitant to reverse decisions in order to avoid a future reversal of their own decisions.” The adoption of the rotation rule, Scharf added, “is not the kind of decision one would expect from a Tribunal keenly aware of the need to be perceived as above reproach.”[1]
Prof. Scharf is far from an ardent critic of ICTY (here and here). But as a conscientious legal professional he has noticed and highlighted a significant problem in the way the two divisions of the ICTY judicial branch function.
The case for separation was well articulated by Prof. William Schabas in his “The International Criminal Court: A Commentary on the Rome Statute”:
“This would ensure a clear distinction between the two functions, effectively eliminate the possibility of a ‘contaminated’ judge sitting on an appeal, and probably help to reduce the potential for tensions among the judges themselves. It might also encourage States to nominate only the most senior and distinguished candidates for the Appeals Chamber.”[2]
In fact, the case for separation hardly needs to be made because it is normal and accepted practice in all civilized judicial systems. ICTY is a glaring exception to this universal and unquestioned rule.
An analogous problem was recently noticed in the United Kingdom. The possibility that some judges of British appellate chambers may also serve in the House of Lords, whose function is legislative, has been the subject of keen and deserved controversy. Referring to possible reforms of the House of Lords, lord David Hope of Craighead has argued that “…the solution to this problem is physical separation – the creation of a new Supreme Court situated in a different building with its own organisation and with Justices who will not be entitled to take any part in the work of the legislature.”
ICTY has proved impervious to cogent arguments urging that its conduct in this regard be brought in line with the prevailing norms of judicial practice. Regrettably, this and other standard procedures designed to ensure the integrity of the judicial process (see our series of posts “The sham of the Hague Tribunal”) were never practiced either by ICTY, or now by its successor Mechanism.
Endnotes:
[1] Scharf, Michael P., Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (Durham, N.C.: Carolina Academic Press, 1997), p. 73.
[2] William Schabas, The International Criminal Court: A Commentary on the Rome Statute, p.717.