Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theories

There doesn't seem to be a day that something new does not arise in the Harhoff saga. Today, the Presiding Judge of the Chamber, Judge Antonetti, has decided to make public the report that he wrote in the context of the disqualification procedure. The decision, in French, explains the recent behind this, and annexes the report itself.

I'll start with the only thing I agree with in the decision: Rule 15bis does not apply to the current situation, as I explained in my previous post.

More importantly, this decision in my view confirms what I mentioned yesterday in relation to there clearly being a problem at the tribunal between the judges, as Judge Antonetti obviously comes out in favor of Judge Harhoff. I also don't know what Judge Antonetti is suggesting when he says in his decision that both Judges Moloto and Hall had sat on benches with Harhoff. Why is that relevant? Is Judge Antonetti suggesting that they were biased against Judge Harhoff? if so, then he should be more explicit. If not, then he should not have made this comment at all.

Both the decision and the report are interesting in showing the state of mind of Judge Antonetti, which echoes what was in the requests for clarification: Judge Harhoff did nothing wrong. Both documents explicitly refuse to discuss the content of the letter, claiming that it is private correspondence that is protected under international human rights. I find that a little unconvincing. The content of the letter and what it might illustrate is one thing, its public or private nature is another. Can Judge Antonetti really claim that he would ignore the content of a private email by which a Judge would be telling friends that he had received a bribe to convict someone? it doesn't make sense.

In any case, Judge Antonetti puts forward a conspiracy theory of his own by focusing on the source of the leak of the letter. The decision says:

Il n'est pas à exclure qu'une entreprise de déstabilisation ait été ourdie par un tiers ou une entité disposant de moyens importants pour aboutir à cet effet. Seule une enquête sérieuse pourra permettre l'identification de !'auteur de la transmission des réflexions personnelles du Juge Harhoff au journal danois et de connaître les motivations réelles de cette transmission.

The Report goes into more detail:

En l'état des hypothèses à envisager, soit il s'agit d'un des destinataires de la correspondance, soit d'une autre personne ou entité qui aurait pénétré l'ordinateur ou le réseau de communications du Juge Harhoff pour transmettre à ce journal ledit document. Le résultat a été évident : il y a eu la volonté manifeste de déstabiliser à titre principal notre Tribunal et de porter atteinte à la réputation du Juge Meron et à titre secondaire d'attenter à l'honneur du Juge Harhoff sur le terrain de l'impartialité et à titre accessoire, de porter atteinte le cas échéant à l' Accusé Vojislav Seselj lui-même pour le cas où il y aurait in fine un changement de Juge

 In a nutshell, for those who don't read French, according to Judge Antonetti, the person who leaked the letter was trying to destablize the tribunal, affect the reputation of Judges Meron and Harhoff and cause prejudice to Seselj. I find the reasoning quite extraordinary. For one, as I said before, the content of the letter is what is relevant, not how it was made public.

Second of all, I'm happy to be able to be of help to Judge Antonetti on this blog: I know the culprit. I know who tried to destabilize the tribunal and smear Judge Meron's reputation through publicizing these comments. It was Judge Harhoff. He did not write this letter to his wife and close childhood friend. He wrote this letter to over 50 people. I might be a sociopath, but I cannot think of 5 people I would trust with such comments, let alone 50. Trying to move the spotlight away from Judge Harhoff's own responsibility in this matter will just not work.

The decision even suggests that contempt proceedings could be initiated against the person who leaked the letter! Which is thoroughly ridiculous in my opinion. Already, the contempt procedure at the tribunal is subject to criticism on a number of levels, if it were to be used on such an issue, then it would be simply a mockery. If any legal action should be taken in relation to the letter, it could be by Judge Meron for defamation...

The other quite extraordinary claim in the documents is that this whole disqualification process would be affecting Seselj's rights, despite the fact that he filed the motion in the first place! Apparently, this argument also appeared his the Prosecution motion for reconsideration, as pointed out by Kevin Jon Heller on twitter yesterday:

@dovjacobs @Rachel_IWPR Most offensive in Pros motion is claim that reconsideration is necessary to protect #Seselj rights! (Para. 5.) #ICTY
— Kevin Jon Heller (@kevinjonheller) September 3, 2013

The only basis for making this claim is that for Judge Antonetti, as for Judge Agius in the order on the follow up to the disqualification that I discussed in my previous post, the option of pronouncing a mistrial and freeing Seselj is just not on the table. This is for me the real threat to Seselj's rights, not the disqualification of Judge Harhoff.

Ultimately, what Judge Antonetti is saying is that he trusts Judge Harhoff and doesn't think that he is lacking in impartiality. In order to make that feeling known, Judge Antonetti refers to his impressions during deliberations, while saying that these are of course confidential. Which essentially means that this feeling is unsubstantiated for the outside world and has to be put in balance with the content of the letter, which is available to the outside world. The Panel decided that the letter was evidence of appearance of bias, irrespective of Judge Antonetti's feelings, and that is the end of the matter.

What these documents show is that Judge Harhoff still has a lot of support at the tribunal, who are trying to save Private Harhoff. However, I think this only works in Spielberg movies and I would be very surprised, and thoroughly dissapointed, should the disqualification decision be reversed. The bottom line is that, whatever the means chosen, and I would arguably agree with those who say that the disqualification route was not necessarily the most convincing, the end result of removing Judge Harhoff from any activities at the tribunal is the correct one. The rest is just commentary.

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.

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.