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Home EJIL Analysis Danish Judge Blasts ICTY President [UPDATED]

Danish Judge Blasts ICTY President [UPDATED]

Published on June 13, 2013        Author: 

A Danish news website has just published a leaked letter from the Danish judge sitting on the ICTY, Frederik Harhoff, blasting the ICTY President, US judge Theodor Meron. The letter seems to have been an email sent to a number of recipients, and it’s not clear to me whether it was originally written in English (PDF) or Danish (PDF) (my guess is Danish due to some of the language used, which doesn’t really work in English) or how exactly it was leaked. Judge Harhoff severely criticizes the ICTY Appeals Chamber for the controversial acquittals in the Gotovina and Perisic cases, claiming that Judge Meron exerted enormous pressure on his colleagues in order to obtain the acquittals, and that he did the same with regard to the Trial Chamber judges in the Stanisic and Simatovic case. Harhoff claims that Meron did so in order to protect the military establishments of powerful states, specifically the US and Israel, from expansive forms of criminal liability previously developed by the ICTY.

Choice quotes from the news story below. Needless to say, this is one of the worst scandals to engulf the ICTY in its history, regardless of whether Harhoff’s accusations have a basis in fact or not.

Harhoff is a judge on the International Criminal Tribunal for the former Yugoslavia. His criticism amounts to a severe and dramatic accusation against the tribunal as a whole. He maintains that the American president of the tribunal has exercised ‘persistent’ and ‘intense’ pressure on his fellow judges to allow top-ranking officers to go free.

Harhoff’s five-page letter, the precise contents of which are confidential, was addressed to 56 people, including several lawyers. In the letter,Harhoff scrutinises and criticises a series of judgements acquitting Serbian and Croatian leaders.

“The most recent of these judgements have occasioned a deep professional and moral dilemma for me, one that I have never before experienced. The worst of it is the suspicion that some of my colleagues have been exposed to short-term political pressure and this completely changes the premises of my work to serve the principles of justice and reason”, Harhoff writes in the letter. He makes it clear that the development “has awoken deep concerns both in myself and other colleagues in the corridors of this tribunal”.

“It would seem”, writes Judge Harhoff, “that the military establishment” in leading states such as Israel and the US “felt that the tribunal was getting too close to top-ranking military commands.”

He continues:

“Has an Israeli or American official influenced the American President of the tribunal to effect a change of course?” Harhoff writes in the letter.

Judge Harhoff states in his letter that the public “will probably never” be told to what extent his suspicion that the American President of the tribunal has influenced the result of the case for political reasons is true:

“But the report of the American president of the tribunal’s persistent pressure on his colleagues in the Gotovina and Perisic cases does more than suggest that he was fairly intent on arriving at an acquittal and especially that he was lucky in being able to persuade the ageing Turkish judge to change his mind at the last minute.”

The “ageing Turkish judge”, Harhoff refers to is the 77-year-old Mehmet Güney, who voted in November to release the two Croatian generals Gotovina and Markac.

Harhoff says that the new precedent “will in future and in the majority of cases allow the top-ranking person to go free. This means that American (and Israeli) commanders in chief can breathe a sigh of relief…”. Harhoff adds “I am left with the distinctly unpleasant impression that the tribunal has shifted course as a result of the pressure from ‘the military establishment’ of certain powerful countries.”

UPDATE: Marlise Simons has an article in the New York Times on the Harhoff letter, in which she also reports on comments by unnamed ICTY senior officials, which to an extent corroborate Harhoff’s allegations:

A spokesman at the court declined to comment on the letter. Other judges and lawyers were willing to speak, provided that their names were not used.

By their accounts, a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the scheduled election for tribunal president this fall. Until now, Judge Meron had been expected to be re-elected.

“I’d say about half the judges are feeling very uncomfortable and prefer to turn to a different candidate,” said a senior court official. The official said he did not believe that American officials had pressured Judge Meron to rule a certain way in any case, “But I believe he wants to cooperate with his government,” the official said. “He’s putting on a lot of pressure and imposing internal deadlines that do not exist.”

Today, as the tribunal winds down it work, pressure over time is among the complaints heard from judges’ chambers. Several senior court officials, while declining to discuss individual cases, said judges had been perturbed by unacceptable pressures from Judge Meron to deliver judgments before they were ready.

After the only session to deliberate the acquittal that Judge Meron had drafted in the case of the two Croatian generals, one official said, the judge abruptly declined a request by two dissenting judges for further debate.

In his letter, Judge Harhoff also said that Judge Michele Picard of France was recently rushed unduly and given only four days to write her dissent against the majority decision to acquit two Serbian police chiefs, Jovica Stanisic and Frank Simatovic.

“She was very taken aback by the acquittal and deeply upset about the fast way it had to be handled,” said an official close to the case.

 

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17 Responses

  1. Douglas Guilfoyle Douglas Guilfoyle

    The conspiracy theories unleashed by these acquittals seem quite startling. I have yet to read the judgement, but could see a number of ways such acquittals could be reached consistent with the established case law. The best commentary I’ve read so far on the acquittals, and the extraordinary response in the advocacy community, has been by Ivanisevic at Balkan insight: http://www.balkaninsight.com/en/article/falling-out-of-love-with-the-hague-tribunal
    Let’s hope cooler heads prevail.

  2. Marko Milanovic Marko Milanovic

    I fully agree Doug – with the proviso that a conspiracy theory does not necessarily entail that there’s no conspiracy, and that saying that X is ‘consistent with the established case law’ does not defeat the different claim that X was motivated by Y. There’s a profound irony here that it’s precisely those who have fought the most against nationalist conspiracy theories against the ICTY in the Balkans now have their own (but again, that doesn’t necessarily mean that they’re not right, especially when an ICTY judge himself comes out with a story like this one). The problem here, as always, is one of perceptions, confirmation bias, and who wants to believe what.

  3. I’m not sure I agree with you that this is the biggest scandal at the ICTY, or at least that it should become that. I have my own take on Judge Harhoff’s letter and I think the points he makes are illustrative of the traditional normative/moral bias that has existed at the tribunal since its inception.

    http://dovjacobs.blogspot.nl/2013/06/some-thoughts-on-bombshell-letter-by.html

  4. Marko Milanovic writes: “Needless to say, this is one of the worst scandals to engulf the ICTY in its history, regardless of whether Harhoff’s accusations have a basis in fact or not.”

    I find it troubling that something can be deemed a scandal “regardless of whether Harhoff’s accusations have a basis in fact or not.” If something has no basis in fact, it is not a “scandal,” it is defamation. I agree with Professor David Kaye, who noted that Harhoff’s email “reflects a “conspiracist attitude, tinged with anti-semitism, is obnoxious.” Moreover, Harhoff doesn’t offer any evidence for these claims.

    I also note the inconsistency of Harhoff’s claims: on the one hand, Judge Orie allegedly succumbed to “American pressure” to acquit Jovica Stanisic and Franko Simatovic, yet on the other hand Orie’s conviction of Ante Gotovina was allegedly overturned by the Appeals Chamber “under American pressure.” Which one is it? Is Orie subject to “American pressure” as claimed in the Stanisic case, or is he the victim of “American pressure” as in Gotovina?

    Moreover, Harhoff’s claim that Judge Meron put pressure on Orie to finish the Stanisic judgement by the end of May is probably true. However, there is a big distinction to be made between “finishing the case,” and actually interfering as to the actual decision in the case. The “pressure” by Meron was not imposed by the Americans, but rather the Security Council, which noted in a resolution that the ICTY Appeals Chamber will only hear cases in which the Notice of Appeal is filed by 30 June 2013. Any cases in which the Notice of Appeal is filed on 1 July 2013 or thereafter will be heard by the new Residual Mechanism. This is likely the reason why both the Stanisic and Prlic cases were decided in the last week of May 2013, i.e. so that both cases could be heard by the ICTY Appeals Chamber. This reflects Security Council pressure on Meron to implement the Completion Strategy (which Meron as President of the ICTY is duty bound to implement), and certainly does NOT mean that Meron actually put pressure on any Trial Chamber concerning the RESULT to be reached in these cases. The fact that Harhoff is not familiar with Security Council deadlines concerning the ICTY’s completion strategy, and instead through rumor and innuendo impugns the reputations of both Meron and the ICTY, reflects at the very least a profound ignorance on Harhoff’s part.

    Finally, it is ironic that Harhoff attacks the “specific direction” finding in the Perisic case as proof of a “US / Israeli conspiracy” to protect military commanders, given that Harhoff himself adopted the “specific direction” standard in his recent judgement in the Zupljanin case. (See paragraph 786 here: http://www.icty.org/x/cases/zupljanin_stanisicm/tjug/en/130327-2.pdf).

    If Harhoff really had a problem with the “specific direction” standard, he shouldn’t have adopted it in Zupljanin. Rather, he should have written a well reasoned dissent, explaining the legal reasoning behind his objection to the “specific direction” standard. Instead, Harhoff to his discredit chose to follow the Appeals Chamber’s lead while “on duty” as an ICTY judge, but when off duty chose to impugn the integrity of his ICTY colleagues in a frivolous email to over 50 of his friends.

    Shame on him. Harhoff should be reminded of the old adage: “When you point a finger of accusation at someone else, remember that you have three fingers pointing right back at you.”

    Luka Misetic

  5. Milan Markovic

    The reaction to the Perisic et al acquittals illustrates the extent to which the outcomes of international criminal trials are expected to conform to preexisting notions of guilt.

    Domestic courts often acquit unsavory defendants for whole hosts of reasons and this does not lead prominent commentators to question the efficacy of the criminal law or judges to start disseminating unsubstantiated musings as to the motivations of their colleagues.

    I appreciate the scholarly debate as to the “specific direction” requirement, but a great deal of the outrage (including Harhoff’s) seems to be targeted at the notion that international criminal courts should ever circumscribe as opposed to expand theories of liability.

  6. Jordan

    This is very, very interesting! What we also know is that the newly articulated preference in the ICTY limits the reach of responsiiblity withn the ICTY under well-documented customary international legal responsibility. Other posts have noted that the ICTY just “made it up” — so it is a preference at best. Our new 4th edition of Paust, Bassiouni, Scharf, Sadat, Gurule, Zagaris, International Criminal Law identifies the customary standard.
    I would not be surprized if there was pressure for protection of others in this matter and with respect to the limit of leader responsiiblity under the Rome Statute for the ICC with respect to civilian leaders as opposed to military leaders (a limit that had no precedent and that has left the ICC with limited jurisdiction — as with the very limiting criteria for crimes against humanity and with respect to complicity as well — all of which means that states must take up the cases that cannot be prosecuted in the ICTY or ICC.

  7. Aldo Zammit Borda

    Thank you Marko for bringing this important matter to our attention.

    I still have to go through the impugned decisions. However, while the extraordinary nature of the allegations would call for prudence and circumspection, given the status of the international judge, I think, they should be accorded their due weight and it would be a mistake to simply dismiss them out of hand as a conspiracy theory, as some commentators appear to have done.

    This matter raises a number of issues.

    Firstly, it appears to indicate that the era of leaks and whistleblowers we live in may have began to infiltrate the international judiciary. Will this be a one-off, or will we see more?

    Secondly, with regard to the substance, it would appear unlikely that the public will ever get to see any hard evidence through formal channels. This may mean that it does not exist and the allegations are unfounded. But it could also mean that it has not been disclosed. In this context, I think, the point you make, Marko, is very interesting: to what extent should international criminal courts circumscribe or, indeed, reverse, the scope of theories of liability?

  8. I’m amazed at the circular language of conspiracy theorists, whereby lack of evidence is proof that there is something hidden. There is no way out to that. Marko, thank you for sharing the information about the letter and the NY Times article, but I’d be curious to know what you actually think about the whole situation.

    On this note, I’ve written a follow-up commentary on spreading the jam:
    http://dovjacobs.blogspot.nl/2013/06/follow-up-on-reactions-to-harhoff-letter.html

  9. Marko Milanovic Marko Milanovic

    Dov, my quick response is that I don’t know what to think about the whole situation. On one hand I am very concerned by the personalization of the whole issue and the fingerpointing at Meron, as if he is somehow capable of single-handedly steering a number of other judges towards the direction he wants. On the other hand, I also don’t think the whole thing can just be dismissed as a conspiracy theory and leave it at that.

    And I also don’t think that this is simply evidence of the ‘just convict everyone’ people not getting their way and then lashing about in self-righteous anger (though there is some of that too). The Gotovina acquittal was problematic for a number of reasons, as I argued in detail earlier on this blog. The sophistic reasoning, the 3-2 split, the unprecedented venom of the dissents and rancor in the Appeals Chamber, the overruling essentially on the facts of a unanimous trial chamber to whom no deference was given even on the existence of a JCE by the Croatian leadership, etc. Add to that the insinuations by Harkoff that the Turkish judge – long-rumored to be past his mental prime, shall we say – was influenced by Meron to change his mind at the last minute, and there you go. You don’t need to be a conspiracy theorist of the ‘Americans never landed on the Moon’ variety to think something fishy is going on here.

    Similarly, the ‘specific direction’ business in Perisic was clearly motivated by the desire to better delineate between culpable and non-culpable remote complicity in international crimes – the provision of aid to the rebels in Libya was openly argued as an example in the appeals proceedings. Just to be clear, I see absolutely nothing wrong with that. But it’s also simply not the case that the ‘specific direction’ standard as applied in Perisic was black letter law in prior ICTY cases, and was just straightforwardly applied. The legal position is much more complicated, the jurisprudence conflicted or just parroting earlier decisions, and a similar fact pattern to Perisic never really arose before.

    So, to sum up, while I object to the personalization of these issues, I also think it incredibly naive to think that judges are not influenced by considerations of policy or even pure politics, and sometimes even quite legitimately so. What exactly happened here is at this point impossible to determine one way or the other, so let’s see how the whole thing unfolds. I remain tentatively agnostic. In the meantime, I can only express my sadness that a pair of absolutely revolting arch-villains like Stanisic and Simatovic have returned to live in my home town.

  10. Marko,

    I agree with you that there are more subtle dynamics at play here and that everything is not just rosy and nice at the ICTY. I do think however that Harhoff in his letter and other critics I’ve heard in the Hague don’t seem to acknowledge this and do fall in the rather unsophisticated group of people just frustrated with acquittals (irrespective of the other legitimate concerns there might be about those, as you said about Gotovina).

    As for Simatovic and Stanisic, there’s still the appeal…

  11. […] Judge Frederik Harhoff wrote a letter last week in which he criticised the ICTY President, US judge Theodor Meron. The letter seems to have been an email sent to a number of recipients, and it’s not clear to whether it was originally written in English, says Marko Milanovic of EJIL Talk. […]

  12. Aldo Zammit Borda

    I feel our positions are more aligned than may appear. There is grave concern at the personalized nature of the accusations which have to be considered with an extreme dose of caution in light of the fact that we only have one side of the story. There is also grave concern with respect to the naming in the letter of the countries allegedly implicated without any tangible evidence. However, there is also acknowledgement that all is not “rosy and nice at the ICTY” and that certain patterns in the recent jurisprudence would call for, at the very least, further analysis.

    And it is this point which, I hope, emerged from my earlier post. At this stage, at least, it may not be prudent to put forward any political theories, whether of an absolving or conspiring streak. However, we can, and should, focus our attention on the legal questions triggered by this incident.

  13. Merlin

    I have two questions unrelated to the cases:
    a) What about the allegations in the Marlise Simons’s article in NYT…that this “revolution” could be linked with the possible re-election of Judge Meron? I thought that this was his last mandate (given his age).Btw. are ad litem judges, as Harhoff is, eligible for the position?
    b) Can judge Harhoff stay at ICTY after such utterly unprofessional move (i believe it is clear to all that sending his email to 50 or so addresses he actually WANTED to make sure that this “private letter” goes public)considering that there are still cases in process at ICTY?

  14. […] Мишетиќ, адвокатот на одбраната на Готовина, во јавен коментар изнесе остра критика за потегот на Хархоф, […]

  15. therealamericro

    Regarding the Gotovina et. al. acquittal, even the “Krajina” Serb leaders, to and include Milosevic, Martic, Stanisic, Simatovic, Hadzic, Martic, Babic and Mrksic Joint Criminal Enterprise Participant Savo Strbac, the then acting Secretary of the so-called “Krajina,” stated on Republika Srpska television that the “Krajina” leadership ordered the withdrawal of all Serbs.

    https://www.youtube.com/watch?v=qSRXAYeSo3M (with English subtitles)

    The question is not why Gotovina and Markac got off, there was no case to begin with as Strbac’s own words in the video show, but why the ICTY was working with (and even awarded) an eight (8) joint criminal enterprise and his sham NGO “Veritas” founded in Knin in 1993 with direct funding from Milosevic, his Serbian Socialist Party, and the Serbian government.

    That the crux of the indictment rested on “evidence” compiled by an eight (8) joint criminal enterprise participant who had direct command responsibility in regards to the four years of unrelenting indiscriminate shelling of Croatian and non-Serb civilian areas (for which not a single Serbian officer was ever indicted for under the 200 meter rule or otherwise, not even for the systematic bombing of Vukovar hospital for 90 days), and the uninvestigated, unprosecuted murders of over 400 sick and elderly Croats and non-Serbs – part of the 0.5 percent of the pre-war “Krajina” Croatian / non-Serb population that was not ethnically cleansed August 3, 1991 to Jan 15, 1995 – by Army of Republika Srpska Krajina, Ministry of Interior of Republika Srpska Krajina, Serbian State Security Service members and Serb civilians is a massive scandal that unfortunately remains un-noticed by legal experts and media.

  16. therealamericro

    It must be noted that the transcripts from the Supreme Defense Council Meeting of August 1995 in Belgrade further shows that the “Krajina” leadership and it alone bore responsibility for the Serbs’ mass self-exodus:

    https://www.youtube.com/watch?v=qsyjCBA_qIg

    That this exculpatory piece of evidence was barred from being submitted into evidence speaks volumes about the nature of the Prosecution’s case and the trial itself.

  17. […] Misetic for alerting me to this point regarding the Stanisic and Zupljanin Trial Judgement in his comment to an earlier post at EJIL […]