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The Mechanism for International Criminal Tribunals, MICT, the legal successor to the International Criminal Tribunal for the former Yugoslavia, ICTY, has revised its rules on exempting judges, which experts say has been done solely to prevent a situation in which Judge Jean-Claude Antonetti might allow Radovan Karadzic to request reconsideration of his second instance imprisonment for genocide and other crimes.
The Hague Court’s Rulebook, which specifies who should decide on judge exemption requests, has been revised so that decisions can now only be made by a three-member chamber appointed by the president of the court.
Pursuant to the amendments, if a request for exemption refers to the Mechanism president, the most experienced judge will make the decision, provided he or she is not a subject to a similar request or an application for disqualification or withdrawal in a related case.
Karadzic’s lawyer, Peter Robinson, told BIRN that the Rulebook had been amended solely because of the verdict against the former president of Republika Srpska. “The Mechanism judges were afraid that judge Antonetti would allow Karadzic to appeal against his life sentence,” Robinson said.
Decision taken by majority of judges
On March 20, Karadzic was sentenced at the second instance before the Mechanism to life imprisonment for genocide in the eastern Bosnian town of Srebrenica, for crimes against humanity and for violations of the laws and customs of war.
He was found guilty of genocide in Srebrenica, of persecution throughout Bosnia and Herzegovina, of terror against the local population of Sarajevo and of taking UNPROFOR members hostage. His sentence was also increased from 40 years to life.
Following the verdict, he demanded that it be reconsidered, along with the decision to increase his sentence from 40 years to life. After Judge Carmel Agius rejected this request, Karadzic filed a new appeal, claiming that Judge Antonetti, not court president Agius or the most-experienced judge, Theodor Meron, should decide on his request.
In his request to exempt Agius and Meron from the decision-making process, Karadzic sought that Antonetti decide on his appeal, because he considered the other two biased, as they had previously sentenced his subordinates to life imprisonment in other cases.
Antonetti was previously chosen, as the most experienced judge, to decide on a request for exemption of judges in the case of Ratko Mladic, which he approved, saying that Agius and Meron were biased.
Numerous legal experts and representatives of victims’ associations criticised this assertion, while the then Hague court president, Meron, told BIRN BiH that he “could have made a fair judgment”, and that Antonetti’s actions had instead “harmed the court’s interests”.
The Mechanism has confirmed that the rules have been changed, explaining that the Rulebook was adopted on a recommendation by a special board and in accordance with amendment adoption procedures. “The decision was taken by an absolute majority of judges of the Mechanism,” Mechanism spokeswoman Helena Eggleston said.
US attorney Robinson said the revision was only supported by a majority of judges out of concern about the Karadzic case. According to him, Karadzic requested the right to appeal the second-instance verdict, because his sentence had been increased from 40 years to life, but Mechanism president Agius had personally rejected the request instead of appointing a chamber to decide the matter.
“At the time, Karadzic requested a reconsideration, pointing out that Agius was not authorized to decide on this. At the same time, he requested Agius’ exemption due to his previous involvement in cases in which life imprisonment sentences had been imposed on Karadzic’s subordinates,” Robinson explained.
Under the rule, the most-experienced judge decides on requests to exempt judges and in this case, it was Judge Antonetti, Robinson said. However, Judge Agius tried to avoid Antonetti’s participation by appointing a three-member chamber to decide on the exemption request.
“The chamber decided recently that it was not competent to decide on this issue because the most-experienced judge was the only one authorized to do it,” Robinson explained.
According to Robinson, to avoid
the imminent selection of Judge Antonetti to decide on Karadzic’s request, the judges revised the rules, so the request could be assigned to a most-experienced judge “who is neither the subject of this request nor a related exemption request”.
As the prosecution previously requested exemption of Judge Antonetti in the Mladic case, under the new rule, he cannot be selected to decide on Karadzic’s request to exempt Judge Agius as the most-experienced judge. Instead of him, Judge Joseph Masanche from Tanzania will be chosen as the next most-experienced judge to take the decision, Robinson said.
Revisions of rules are not unusual
An international humanitarian law researcher at Utrecht University, Iva Vukusic, saod revisions to rules and amendments of this sort are not unusual in court practice, noting that the rules of work of the ICTY had been revised several times.
“From now on, important decisions on disqualification should be taken by panels, not individuals, which seems meaningful to me. Decisions of this sort are very sensitive and have important implications, and it is good that several judges discuss such an important issue,” Vukusic said.
She said the revision probably had to do with Judge Antonetti and his decisions, but she was not sure whether the Mechanism was trying to “restore confidence”. She believed the rules are revised primarily for the sake of the institution itself, to ensure what the judges consider better functioning and perhaps stop similar controversies in future.
“Should they have reacted earlier? The rules were in force as they were and, if I understand it well, you cannot do anything about it retroactively, but perhaps they should have thought earlier that such important decisions should not be made by an individual judge who might have various motives, like professional vanity or personal animosity, that might influence his/her decisions,” Vukusic said.
Antonetti’s stand on perceptions of partiality had a big impact on the composition of the Appeals Chamber in the case against the former Bosnian Serb Army chief, Mladic.
Under a first-instance verdict, Mladic was found guilty and sentenced to life imprisonment for genocide and other crimes in Bosnia. When he appealed, Antonetti approved a request for exemption and replaced three members of the Appeals Chamber.
Miodrag Stojanovic, a member of Mladic’s defence team, says he has not had a chance to see the revisions to the Rulebook, but the changes in the composition of the chamber had been justified and legitimate.
“It is completely natural for such exemption requests to be based on the fact that a judge in question was contaminated by his stand expressed in previous cases, where he decided on the same legal issue or the same factual status,” Stojanovic said.
Only a few trials dealing with the former Yugoslavia have remained before the Mechanism, namely those against Mladic, Stanisic and Simatovic, so the revisions to the Rulebook cases will probably have little effect on those cases.
The presentation of evidence by the defence of the former chief of the State Security Service of Serbia, Jovica Stanisic, and intelligence officer with that service, Franko Simatovic, who are on retrial before the Mechanism, is currently underway. Stanisic and Simatovic have been charged with persecution, murders, forcible resettlements and deportation of Croats and Bosniaks in Croatia and Bosnia and Herzegovina. A second-instance verdict in their case is expected next year.
The Appeals Chamber of the MICT has scheduled the presentation for March 17, 2020 of an appeal against the first-instance verdict against Mladic, who was sentenced to life. The date of the final verdict has still not been set, but Mechanism president Agius said the judgment would be handed down by the end of 2020.