Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.

This is a lot of information to digest, but just a couple of preliminary thoughts. I don't have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I'm not sure this will go anywhere, but we will have to see.

• The Order from Judge Agius (acting President of the Tribunal)

The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because "in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis", without much further explanation.

The relevant parts of this rule are the following:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the  proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G). 

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President  shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

I'm not entirely convinced by the application of this rule to the current situation. For one, it's obviously not applicable. As Judge Agius acknowledges, this cannot be "strictly speaking be described as part-heard". This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.

This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!

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.

A Visual Summary of my Thoughts on the Continued Harhoff/Meron "scandal"

This is arguably my shortest blog post ever, but, in addition to my more lenghty thoughts on the subject (here and here), I wanted to share my feeling about a lot of what has been written, and continues to be written on the Harhoff storm in a teacup.

H/T to Jens for mentioning the existence of this cartoon and to Thomas for sending it to me.

Follow up on the reactions to the Harhoff letter

[The first part of this post is here]

The letter by Judge Harhoff alledging that the President of the ICTY, Judge Meron, was acting on orders from the US in recent aquittals, or at least adopting legal positions to support US positions, has received some commentary since it was made public yesterday, from blogs such as this one and EJIL Talk!, but also in the New York Times, where an article reveals that a number of officials and judges at that ICTY share Judge Harhoff's skepticism and doubts about Judge Meron, to the point where another candidate has come forward to oppose the re-election of the latter at the Presidency. If these claims by the NY Times article are true, it seems that, if anything, Judge Harhoff has opened the floodgates of violating confidential information at the ICTY. Again, I don't know if this is a good or bad thing, but it finally gives outside observers something concrete to work with.

But, in relation to the substance, none of the comments I've read so far actually bring me any closer to knowing what went on. I'm seeing language typical of conspiracy theories: "hopefully we'll get evidence, and if there is no evidence, that means that someone is hiding things from us". It's a win-win situation for the conspirationists, because evidence either way can be construed as evidence of the existence of the conspiration. Also typical, is that there is a subtle shift of the burden of proof, as if those who don't buy into the conspiracy have to bring elements to disprove it. That's not how things should work. How do you prove that a spaceship did not land somewhere in the desert in the 1960s, leading to unhealthy experiments on alien beings?

In light of this, the only reasonable thing to do would be to just stop speculating until something concrete, other than a mere moral bias on the part of the critics (often relying on a somewhat simplistic, if not plainly wrong, analysis of the preceding case law), is revealed.

This being said, and because the temptation is just too big not to continue to debate pointlessly about this issue, I want to just share three thoughts that came up from reading the NY Times article.

First of all, there is the idea that there is a shift towards more deference to the military in the interpretation of the law in recent decisions. That might be true, but I would say that the anomaly was the previous shift away from that. For many years now, Human Rights activists have managed to convince way too many  people that International Humanitarian Law was merely a wartime branch of human rights law aimed only at protecting civilians, to the exclusion of any other consideration. But that was never true. IHL has always been a balance between the protection of non-combattants and military necessity. Forgetting the second branch of the balance has led to what Darryl Robinson has perfectly and brilliantly described as the identity crisis of international criminal law. In my view, it is therefore those who orchestrated that shift that had a political agenda, rather than those who would be returning this law to the traditional balance at the heart of IHL.

Second of all, there is this double idea that things didn't go well in Simatovic, because Judge Picard was not given enough time to write her dissent and because Orie was alledgedly also under influence. These are two different things. The first one is testimony, if true, of the fact that the ICTY has been under pressure, notably from the Security Council, for some years now to wind down its activities through the implementation of a rigorous completion strategy. And commentators have not generally been complaining about that. On the contrary, the ICTY has been regularly faulted for taking way too long to go through the trial process and the judgment drafting. It might be unfair that some judges today have to speed things up because previous generations of their colleagues were moving along at a leasurely pace, but I don't see the link with the issue at hand. As for Judge Orie, it should be pointed out that he appended to the Simatovic Judgment a rather surprising separate opinion that responds directly to Judge Picard's dissent and defends the majority judgment. I find this practice a little puzzling, but, beyond that, if Judge Orie was really under external pressure, why would he do that? It is one thing to give in to the pressure in the majority judgment, it is another entirely to go out on a limb to actually write a separate opinion with his sole name on it to defend the majority. This seems to indicate that, whatever one thinks of the majority Judgement, Judge Orie sincerely believes in it.

Finally, I am once again appalled at the narrative being constructed at the moment of the ICTY being a lenient court letting "murderers" get away. That is simply not true. On a long term perspective, the ICTY case law has developed principles that cast the net very wide, rather than very narrowly, through, for example, Joint Criminal Entreprise, command responsibility, or the adoption of rules of evidence that would make any national criminal lawyer laugh and cringe at the same time. Even in the short term,   nobody seems to recall that just a few weeks ago, the ICTY found 6 defendants guilty in the Prlic case, with a strong dissent from the Presiding Judge on the lack of evidence of a Joint Criminal Entreprise. Why is nobody talking about that?

At the end of the day, if we strip away the argumentative niceties and the unsubstantiated conspiracy theories, there remains a rather mundane, but fundamental dimension on international criminal justice: its bias towards convictions and the blatant disrespect for the rights of the defense and the principle of legality. When I hear certain people talk about international criminal justice, I sometimes wonder why they bother advocating for international criminal courts at all, when they seem intimately convinced that all defendants that will appear before them are necessarily guilty. I would have more respect for these activists if they stopped pretending to have a liberal agenda and clearly stated that we should dispense with the whole masquerade that are international trials to directly go to the sentencing phase, where the bad guys will finally get what they deserve.

Some Thoughts on The bombshell Letter by Judge Harhoff at the ICTY

[The follow up of this blogpost is here]

The news has spread since this morning like a virus. A Danish newspaper has revealed the existence of a letter sent to a list of 56 (!) friends by Judge Harhoff, a siting judge at the ICTY, claiming that the recent acquittals at the ICTY (Gotovina, Perisic, Stanicic and Simatovic) are the result of political pressure exerciced by the US and Israel on the American President of the Tribunal, Judge Meron, who in turn alledgedly influenced his fellow judges to increase the threshold of complicity so as to make convictions more difficult.

This letter is obviously incredible and brings up some thoughts on a number of levels.

• On the actual existence of the letter

First of all, if Judge Harhoff thought that this "confidential" message sent to a select number of his friends would not be made public, it shows a certain naivety. Moreover, one can question the propriety of such a letter. It seems to reveal internal information to the tribunal, in terms of the relationship between the judges that are most likely not meant to be made public.

This being said, the letter is obviously a useful tool for outside observers who rarely have access to publicly available information on the international dynamics within the tribunals, more specifically on the relationship between judges. In that sense, while probably formally improper, the letter is a welcome addition to anyone trying to understand how international criminal justice actually works, beyond the legal discussions on its output.

• The content of the letter

I will not delve into the actual substance of the debate on the "specific direction" test that is at the heart of the current controversy. Manuel Ventura published his take on this earlier this year on this blog, and the debate has been sparked up over at Opinio Juris, with recent posts by Kevin John Heller and James Stewart. I think it's ultimately a normative choice, with both sides having legitimate points to make.

I do however think that we need to distinguish the several dimensions of the allegations. 

The first one seems to be that some major powers have been putting pressure on Meron to interpret the law in such a way that some conduct not be regarded as complicity. I must admit that, probably naively, I don't quite buy it. The case law of these tribunals has, over the past 20 years, adopted a number of expansive interpretations of ICL to expand criminal liability of commanders, whether through the removal of causation in command responsibility or of course the creation of Joint Criminal Entreprise. This case law never bothered anyone at the state department, despite the impact that it could theoretically have on the criminal responsibility of commanders. But of course, if there is any evidence of "specific direction" (pun intended) from some countries to their judges to apply the law in a certain way, this would be contrary to the rule of independence and impartiality of the judges and would arguably warrant sanctions.

A second, somewhat different angle, is that of Judge Meron trying himself to change the judicial policy of the tribunal on those matters. If that is what happened, I don't see the problem, to put it bluntly. How is this any different than Cassese influencing the judicial policy of the tribunal with Joint Criminal Entreprise? Both have a normative agenda, and I refuse to take sides, on principle, between competing normative agendas, because one of them would be labelled as "moral" (i.e, good) while the other would be labelled as "political" (i.e, bad). The reason nobody was complaining at the time is of course that it is ok to stretch the law and the principle of legality and to have a normative agenda if the result is to put the bad guys behind bars. It suddenly becomes shameful when the result is acquittals. [CLARIFICATION: I'm not saying that I believe that Meron has a political agenda. I'm saying that even if he does have one, I don't necessarily see the problem. As others have argued (see UPDATE 2 below), the "specific direction" test predates by many years the current cases and it is not at all evident that Meron does in fact have a political agenda].

A third dimension is the alleged influence of Meron on other judges. This for me is the most hypocritical argument made in the letter. Of course judges influence other judges. That is the nature of deliberations and the reality of the tribunals. The history of ICTY benches is a history of some extremely competent people, but also a history of judges with serious deficiencies in character and in competence on issues of international law and international criminal law. Who could seriously claim that Antonio Cassese did not put "pressure" on some of his fellow judges to obtain certain things in judgments? Who could seriously claim more generally that deliberations are perfect egalitarian foras where the perfect legal truth emerges form pure argumentation? All deliberative bodies are the scene of power struggles, personal animosities and friendships which necessarily influence approaches to the substance of issues discussed, back-door compromises and negotiations. I don't see why ICTY Chambers would be any different. Once again, I did not hear Harhoff complain in the past of the possible intellectual influence of some judges over others.

• the impact of the letter

It is difficult at this point to gauge the possible impact of this letter, other than getting the little world of ICL commentators excited. In relation to Perisic and Gotovina, I wonder if there is any room for the Prosecutor to request a reconsideration of the Appeals Judgments in light of the allegations by Judge Harhoff. My sense is that, absent specific evidence of lack of impartiality on the part of Meron, this would be bound to fail. Also, it is possible that the Prosecutor will bring these issues up in the Simatovic appeal, maybe to ask for the removal of Judge Meron (and Gunay?) but again without concrete evidence, I don't see this going very far.

What about the impact on the outside world? Some might think that the legitimacy of the tribunal would be affected by such allegations. I really don't think so. First of all, the internal workings of the tribunal are, let's be honest, of interest to only a limited number of Hague nerdish commentators. Second of all, those who already think that the tribunal is illegitimate, will only think that their fears are confirmed. The affected communities never had much faith in the institution in the first place, and I don't see these new accusations as changing anything. The only community that might be concerned is the community of human rights activists, who, as Judge Harhoff, frown upon anything that might stand in the way of "ending impunity", be it politics, the rights of the defense or the principle of legality. 

Finally, what could be the consequences for Judge Harhoff himself? I can't see this being pushed under the rug. He is currently sitting on the difficult Sesejl case, but it is difficult to know if there is any link with the current debate until the judgment is issued. On a general level, there doesn't seem to be much respect on the part of the judge for the presumption of innocence, as he seems to have preconceived ideas about who should be found guilty or not. More generally, Judge Harhoff has explicitly singled out some of his colleagues and I can't see how this can make his work at the ICTY possible. A French politician some years ago said that a government minister should either shut up or get out if he disagrees with his government. I'm wondering if this should not apply to Judge Harhoff as a natural consequence of his doubts, whatever one thinks of them.

UPDATE 1: Over at EJIL Talk!, Marko Milanovic thinks that this is the "worst scandal to engulf the ICTY in its history". I'm really not that sure that it will be and if it really does turn out to be, I think it means that people seriously have their priorities wrong in what they should be focusing on in the work and output of the ICTY.

UPDATE 2: This recent blogpost over at Balkan Insight sheds some light on the fact that if there is a conspiracy theory, the case needs to be made in a far more convincing way given, among other things, the past use of the "specific direction" test in the case law. Ivanisevic argues rather convincingly that what has changed is not the political policy, but rather the fact pattern.