Harhoff disqualification: no impact on the Seselj Case? Possibly...

I suggested in my previous post that the disqualification of Judge Harhoff from the Seselj case could mean that the trial would have to start over from scratch, or be terminated because a retrial would violate Seselj's rights.

The decision to disqualify says nothing on this point, and my analysis was based on what I thought was a common sense assessment of the situation, but it does not seem to be borne out by the legal provisions on this issue.

Indeed, Rule 15 of the Rules of Procedure and Evidence provides that:

A Judge may not sit on a trial or appeal in any case in which the Judge has a  personal interest or concerning which the Judge has or has had any association  which might affect his or her impartiality. The Judge shall in any such  circumstance withdraw, and the President shall assign another Judge to the case. 

The last sentence would seem to indicate that a new judge can be assigned, and that things could therefore proceed as planned. I could not find any example of disqualifications at the ICTY (I'm happy for readers to direct me to such cases), nor do I find any help in the ICC legal framework on this matter, so for all intent and purposes, Rule 15 is all I have to go by, and I don't particularly like it.

First of all, a couple of months before the issuance of the judgement, I don't see how a new judge could familiarize himself sufficiently with the case to provide informed opinions on the evidence and the applicable law. If anything, this would most certainly push back the judgement to far ahead in the future so that any findings made in deliberations be revisited with the new judge.

Second of all, Harhoff's lack of impartiality (UPDATE: changed from 'bias') should not just seen in relation to the formal issuance of the judgement on guilt or innocence. It possibly pervaded every step of the proceedings since the beginning, be it in various kinds of decisions, or the way witnesses were asked questions, for example. I don't see how one can consider that the whole process is not tainted. If we were a couple of weeks into the trial, then a case could be made that the bias did not affect the fairness of the proceedings, but so close to the end? I don't find this convincing.

In addition, if that is indeed the solution, then I don't see the point of having the reserve judge procedure (Rule 15ter ICTY RPE). Isn't that to avoid that a trial start from scratch should something happen to one of the judges? Surely, if one could judge appoint a new judge and continue without interruption, then the reserve judge would never be necessary.

All in all, I would therefore be quite dissatisfied should there be no consequences on the actual proceedings of this disqualification. Should the trial chamber proceed in this fashion, it would add a mockery of justice to a mockery of justice.

Nightmare scenario at the ICTY: Judge Harhoff disqualified

The news broke an hour ago: Seselj's long-winded motion to disqualify Judge Harhoff from his case has been successful. His motion was based on the letter that Judge Harhoff sent  in the spring to a number of his friends, and that I commented on extensively on this blog (here and here). Basically, the panel found in its decision that 

In the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias

This is quite big news and the first public sign, to put it mildly, that someone at the ICTY is unhappy with Harhoff's conduct. The question now is of course what the consequences of this decision, given that the decision considers that Judge Harhoff's bias is general, not specific to the Seselj case. 

In the Seselj case, first of all, does this now mean that the trial has to start over from scratch? Given the tortured history of this trial, it's difficult to imagine that the ICTY wants this, and Seselj would have a good claim to being released because a new trial would constitute an abuse of process. 

In the Stanisic case on appeal, there is a pending motion to admit Harhoff letter as new evidence. I don't see how the Appeals Chamber can decently refuse that motion now. And more, I think this could be a strong basis for a new motion in review of the Trial Judgement. 

Finally, in the Delic case, his lawyer filed a motion for revision, with the added difficulty of the defendant being deceased (i commented on that point here). Again, this new decision strenghtens the motion. 

More generally, does it mean that every case that Judge Harhoff was on is now subject to revision? I haven't done a list of those cases yet, but given that he has been at the ICTY for some years now, this could have serious consequences. UPDATE: there is only the Dragomir Milosevic case, but there hasn't been any movement from there yet, that I know of.

Judge Harhoff was also Senior Legal Officer in Chambers for 10 years, so, to stretch things a bit, the cases he worked on could theoretically be affected. 

What is clear is that this most certainly puts an end to Judge Harhoff career at the ICTY. It was already surprising that he had not resigned before and this decision means that he cannot decently work there anymore. He probably should have resigned before being fired. 

A final thought: there is of course a certain level of hypocrisy here. I, like many, have always thought that the ICTY, and international criminal justice in general, is biased in favour of convictions, and has developed tools to make these easier, in terms of rules of evidence or modes of liability, such as JCE. It seems slightly unfair that Judge Harhoff should pay for saying publicly what a lot of people at the ICTY think, including among the judges. Therefore, this decision should not be taken as a reason to continue to reflect on the biases of the system that go well beyond the fate of just Judge Harhoff. 

Why the Vienna Convention should not be applied to the ICC Rome Statute: a plea for respecting the principle of legality

Dapo Akande and Kevin John Heller are engaging in a really interesting discussion on how the application of the Vienna Convention on the Law of Treaties (VCLT) might allow us to interpret the Rome Statute to include the use of chemical weapons as a discrete war crime. Dapo argues that it can and Kevin, while agreeing with Dapo, regrets that this result would be attained at the expense of states’ consent and explicit desire to exclude such a provision in the statute.

What I find interesting in those posts is that they both take for granted that the VCLT in fact can be applied to the Rome Statute. Of course, any first year international law student will tell me that this is obvious and unquestionable: the Rome Statute is a treaty and therefore, the VCLT applies. However, I’m not entirely sure I agree.

I've always found the question of the applicable rules of interpretation to international criminal law statutes to be an underdeveloped aspect of the literature on the work of the tribunals. The applicability to the statutes of the VCLT, or at least the rules contained in it, has rarely really been questioned. The case law of the ad hoc tribunals is full of judgments and decisions, which either explicitly or implicitly refer to those rules, despite the fact that as UNSC Resolutions, the Statutes of these institutions should not necessarily be looked through that lens. In a recent decision, the Appeals Chamber of the Special Tribunal for Lebanon even went as far as to claim that the VCLT applies to “any internationally binding instrument, whatever its normative source". As for the ICC, Judges have, most would say logically, applied the VCLT to the Rome Statute as a treaty.

This situation is understandable. As international lawyers, the VCLT is our default go-to document to look for rules of interpretation of international documents. But I believe this fundamentally ignores the specific nature of international criminal law and the central role of the principle of legality. This is why, in an upcoming book chapter, the first draft of which can be found here, I suggest my own, somewhat unorthodox (according to everyone I've spoken to about them) views on the applicability of the VCLT to the Rome Statute in the first place. In a nutshell, what I argue in my Chapter is that the requirements of the principle of legality in ICL would warrant against the application of the broad and ultimately discretionary rules of interpretation of the VCLT.

For one, they have been thoroughly been misused in the past, with unacceptable references to the "object and purpose" approach to essentially introduce morality as a way to circumvent strict legality. Indeed, you often see broad references to the “end of impunity” or various variations on the protection of human dignity as part of the “object and purpose” of the Rome Statute to justify expansive (some say progressive) interpretations of the applicable law. Also, I think that a rule such as that of subsequent practice of States (article 31(3)(b), VCLT) would often not be compatible with the non-retroactivity of criminal law. 

Second of all, and more technically, I put forward 2 series of arguments against the application of the VCLT to the Rome Statute.

The first one relates to the clear existence in Statute (compared to other international criminal tribunals so far) of lex specialis rules of interpretation, in terms of in dubio pro reo, strict intepretation and the prohibition of analogy (article 22). This therefore would exclude the lex generalis rules of the Vienna Convention. 

The second argument is a bit different. I think that the "nature" of a document depends not on the document itself, in an absolute and abstract way, but on the entity applying it and the entities it is applied to. In other words, the Rome Statute might sometimes be considered as a treaty and sometimes not. When it is applied by the judges of the ICC, it is an internal application of the Statute and it is therefore not applied qua treaty, but rather as internal rules of the organization. On the other hand, if two States were to engage in a dispute on the interpretation of the Rome Statute (for example in relation to duties to cooperation or duties to surrender accused), then the Rome Statute would apply qua treaty between them, and the VCLT would arguably be a valid point of reference.

This second approach, of the possible dual nature of an international document, is not unheard of. For example, the question arose in the the Kosovo Advisory Opinion, which I think completely fumbled the question of whether the constitutional framework was relevant international law for the dispute. The ICJ said that it was, based on the fact that it was formally an UNMIK Regulation, adopted pursuant to powers granted by the UNSC. I must admit I initially agreed with the ICJ, but on further reflection I do believe that because in that context it was meant to be an internal legal document not aiming at having international legal effect, it was not relevant international law at all (see my LJIL article for further discussion on this point).

To clarify, I don’t suggest that my proposal removes by magic any difficulty in interpreting the Rome Statute. There will always be cases of ambiguity, real of perceived, that will probably require a balance of interests between different possible interpretations. I just want to reintroduce one interest that is somewhat often forgotten in these debates: that of the accused and more generally, the application of the principle of legality. These interests should come first in the discussion, not last as is often the case. For example, in the above mentioned STL Appeals Chamber decision, there is a lengthy discussion of all the different rules of interpretation contained in the VCLT, and only at the very end is it mentioned that, if nothing else works to solve an ambiguity, then the interpretation most favourable to the accused should be adopted. This, for me, is the wrong logic. The first rules to go to are the ones which favor the defendant.

Applied to Kevin and Dapo’s conversation, this doesn’t mean that I would necessarily disagree with them, just that I would approach things differently.

For me, Dapo’s excellent interpretation needs to pass an additional test, that of being foreseeable by the defendant. I’m also not sure it is not in violation of the prohibition of expansion by analogy.

As for Kevin’s points about the importance of State consent, I think that it is not always a good starting point. Indeed, I don’t care what States wanted. If they drafted an ambiguous provision, the interpretation most favorable to the accused must be adopted, even if the travaux préparatoires indicate that the other interpretation was favored. Drafters should do their homework. If they plan to send someone to jail for a considerable period of time based on the Statute, the least they can do is make this crystal clear in the wording of the provisions. On the other hand, in the specific case of chemical weapons, if there is wide public knowledge of States wanting to exclude from the Statute, then it can be relevant in going to show that prosecution specifically for such conduct was not foreseeable.

All in all, given the regular violations of the principle of legality in international criminal case law, my proposal therefore aims, beyond a change in the applicable rules of interpretation, at a change in the state of mind of those applying those rules, be they judges or academics.

Low Morale at the ICTY

I just came across this article on the sense website about the morale of the staff at the ICTY, based on a survey taken among the Associate Legal Officers (ALOs) in June.

This is how the results are summarized :

“The morale of the staff in the Tribunal’s Chambers is at an all-time low. Many of the lawyers feel angry, sad, demoralized, betrayed, frustrated, powerless, undervalued and unappreciated, and also very distrustful of decisions coming from the President's office. The general feeling seems to be that President and his Office do not care about the Chamber's staff or the legacy of this institution but only about the completion strategy, the MICT (Mechanism for International Criminal Tribunals, which will carry out the residual tasks of the tribunals for the former Yugoslavia and Rwanda), and their own personal interests.”

This certainly does not draw a happy picture of the atmosphere at the ICTY right now. If true, this is certainly interesting, but ultimately, highlights a number of features of the internal dynamics of the ICTY, and probably other international tribunals, which are not that surprising.

The charges levelled at the Presidency are particularly disturbing and if true, would warrant action far more than the unsubstantiated allegations put forward by Judge Harhoff some months ago, on which I commented on at the time (here and here).

Of course, one could adopt a demagogic position and minimize the results of this survey. Who cares about well-paid UN staffers in The Hague complaining about their work conditions, when thousands of victims in Yugoslavia are waiting for justice for the uncountable list of crimes committed against them? This would not be an entirely unfair statement to make but would ultimately be missing the point. Indeed, if one is attached to the process of international justice and efficient prosecutions for international crimes, then the institutions set up to meet that goal need to abide by certain minimum standards.

First of all, in this case the first rule of management seems to be ignored by the people at the top: keep your staff happy. There is no way that performance is not affected if the morale is so low. To put it bluntly, why would you bust your ass for an institution that shows so little disregard for you?

More importantly, the survey, beyond illustrating the personal difficulties of the staff, highlights some broader systemic difficulties at the ICTY, which ultimately also affects its performance and output.

For example, it illustrates the difficulties with the fact that there is no formal institutional link between the MICT and the ICTY. Indeed, beyond the fact that this is unfair to the current ICTY staff, I don’t see how hiring totally new people from the outside is a good idea, because this is the best way of losing the institutional memory that would lead to improved practices over the years.

In fact, this question goes well beyond the MICT. As anybody working in this field or The Hague for long enough can see, the turnover at the ICTY is incredibly high, with the result that it is likely that a number of people involved in the drafting of judgments probably never attended a single trial session. How course, one could tell me that as long as the Judges attended, then it is fine, because they are ultimately the ones deciding on the facts and the law. That is theoretically true, but so far removed from the reality of judgment drafting that it makes hardly any sense to approach things in this way. Indeed, there is no way that thousands of pages of judgments are prepared without the staff having some input in the way the evidence is understood and presented. As a result, this turnover means that there is no “case memory”, let alone institutional memory.

Finally, these allegations, beyond affecting the well-being of the ALOs, can, if true, only affect the legitimacy and credibility of the institution. Why, when all institutions in the world are increasingly being made accountable for practices of corruption, nepotism and lack of transparency as conditions for the legitimate exercise of authority, should the UN, and the ICTY in particular be exempt from these minimum principles?

On a final note, one issue raised in the article caught my attention:

Finally, as one of the respondents said, the ‘low morale is not helped by the recent appeal judgments, which are sending the message that no matter how voluminous, detailed or reasoned trial judgments are, they can be overturned in their entirety in a matter of few months, without much regard for the standard of review and in a 50 or so pages which contain very sparse reasoning’.

This is obviously a reference to the Gotovina Appeals Judgment and more generally to the recent acquittals, notably in the Perisic case. I will not restart the debate on the substance or merits of these acquitals, but I find it somewhat disconcerting that standards have been so warped at the ICTY, and in international justice generally, that a short judgment issued in a few months be considered as promoting « low morale ». For me, it is the thousand page judgment which it took years to draft that affect my morale…