Did a supporter of International criminal law turn into a stooge of the US?
Diplomatic cables from the US embassy in the Hague corroborate the accusation recently put forward by the Danish judge Frederik Harhoff against the President of the International Criminal Tribunal for the former Yugoslavia (ICTY), Theodor Meron. In a letter the Danish daily paper B.T. made public last week the tribunal president is alleged to have served as a US puppet and for acquitting several war criminals.
Now documents from 2003 made public by WikiLeaks show that Meron had close and confidential relations with the United States government in his first term as President of the ICTY.
»It is the perception among my former colleagues that the tribunal president takes instructions from the US government. And the WikiLeaks documents certainly do not help his case,« a former legal adviser at the Tribunal said. Like several other sources with whom Information spoke this adviser did not want to speak for attribution.
In a private letter made public in the Copenhagen daily B.T. last Thursday, Harhoff claimed the recent acquittal of two Croatians and three Serbs is contrary to the previous standard, by which top commanders are held responsible for crimes committed by subordinates in the former Yugoslavia.
Moreover, Harhoff and several critics who prefer to remain anonymous, contend the Tribunal President has pushed for expediting the proceedings in the interests of saving money and winding up the work of the 20-year long legal process.
Several experts in international law find changing the legal standard hard to fathom.
”I do not quarrel with the fact that these people were found not guilty. I quarrel with the legal standard coming out of these cases, because it is inconsistent with the theory of command responsibility that has been in effect since the Tokyo and Nürnberg trials,” said Gabor Rona, director of the international legal office at Human Rights First in New York.
Other experts interviewed contended there was absolutely no evidence in the WikiLeaks cables showing that judge Meron had acted as a puppet of the US or Israel.
That Mr. Meron’s and his family were victims of the Holocaust has made the controversy surrounding the use of a new legal standard to acquit convicted war criminals even more fascinating for outsiders.
Not much is known of Mr. Meron’s personal history. In an interview last March with BBC Hardtalk he mentioned having been in a labor camp in Germany without offering any details. Almost all his family was wiped out in Hitler’s gas chambers. Since then he has dedicated his life to fighting for international criminal justice.
Last week this image of the man started to crack at the seams as the Danish paper B.T. published a private letter that a member of the war crimes tribunal, Judge Frederik Harhoff, had circulated among a circle of friends and colleagues. In the email Harhoff alleged that the Tribunal President possibly was acting as a stooge for the US and Israel – or that is at least what the Danish judge and other critics believe.
Meron was born in 1930 into a Jewish family in Kalisz, Poland. Following the war he emigrated to Israel where he studied law at Hebrew University; later he graduated from Harvard Law School. He told the BBC that his initial interest in international criminal law was prompted by his (undoubtedly horrific) experiences during the war, although he now felt he had put this chapter behind him.
”As a judge I should not be allowed to focus on it, I should focus on the case, on the law, the facts before me, and I try to in my own life to move ahead and not to think too much of my childhood experience. Being a victim is not necessarily a badge of honor. It is being a victim. We must move on … and try to build a better world,” he told the BBC’s Stephen Sackur.
But how does this square with the fact that Mr. Meron as president of the ICTY since 2011 and the presiding judge in two out of three appeal cases, which lead to acquittal, seemingly undermined one of the most important legal standards developed within the field of international criminal justice since World War II?
These are the principles of ”command responsibility” and ”joint criminal enterprise” meaning that military commanders and political leaders ought to be accountable for crimes committed by their subordinates.
At the end of last year judge Meron and some other judges started acquitting Serbs and Croats who had been convicted of war crimes and crimes against humanity in Trial court in the Hague – people whose conviction earlier on most likely would have been upheld in the Appeals chamber.
The documents found on WikiLeaks website corroborate to a certain extent the assertions put forward by Judge Harhoff. In two diplomatic cables sent from the U.S. embassy in the Netherlands in 2003 during Mr. Meron’s first term as President of the Tribunal he is described as coordinating his views on the court’s work with the US government.
A close examination of the cables dated July 2003 - a few months after Meron was first appointed president - supports to some extent Harhoff’s hypothesis.
It is apparent that the President of the Tribunal had remarkably close ties to the U.S. government. This despite the fact that UN employees are expected to act independently of their national government.
In one cable it is stated that Meron during a meeting with the U.S. Ambassador expressed his strong dissatisfaction with Swiss chief prosecutor Carla Del Ponte's work. What is particularly striking is that the president apparently asked the U.S. government to oppose the renewal of Del Ponte's mandate in the UN Security Council.
”Meron urged the United States government to oppose renewal and expressed reservations about a one year extension of her mandate,” according to the US Embassy cable.
According to what the tribunal president told the ambassador Ms. Del Ponte was apparently obstructing a US and Russian plan to wind up the work of the court as soon as possible – a completion strategy that was partly justified because of the high economic costs of running the ICTY.
”Meron, based on his conversations with Del Ponte and others in Office of the Prosecutor … has concluded that Del Ponte ’is not interested the completion strategy’," the diplomatic cable stated.
That is exactly the strategy that Judge Harhoff and other internation law experts contend Meron still is pursuing during his second tenure as president of the tribunal, which started in 2011. In his email Harhoff alleged that Mr. Meron put great pressure to bear on other judges to expedite trials in order to meet deadlines and execute the US inspired completion strategy.
In another cable Meron is supposed to have told U.S. ambassador for war crimes, Pierre-Richard Prosper, of a request he had received from Carla Del Ponte to publicly denounce U.S. support for Serbia's proposal to prosecute people suspected of war crimes in Serbian courts.
”President Theodor Meron initiated the discussion with Ambassador Prosper by noting that Chief Prosecutor Carla Del Ponte had placed him under considerable pressure by formally requesting in writing that he condemn publicly U.S. officials' statements concerning the possibility of Serb courts trying cases …”, stated the cable.
The idea of contracting out trials to Serbian courts was a highly controversial one at the Tribunal at the time, and it is apparent from the cable that Meron was hoping to get some clarification of the US position to let him off the hook and get away with not distancing himself from his own country’s policies. Again – letting Serbian courts take part of the work load would have easened the burden on ICTY, saved the US money and completed its work earlier.
In a comment at the end of the cable Meron is described as ”the Tribunal's preeminent supporter of United States government efforts.”
In his letter judge Harhoff alleged that the Appeal chamber’s acquittal of two Croats in December 2012, and that of the former Serbian Army chief-of-staff Momcilo Perisic in March and most recently the acquittal of two former Serbian security chiefs in Trial court only is explicable by political pressure put on the president of the court.
Mr. Meron served as presiding judge in the rulings issued in the two appeals cases and appoints judges to the Tribunal's Appeals chamber.
"Has any Israeli or American official perhaps put pressure on the American President of the Tribunal to effect a change of course?" Harhoff wrote.
As far as Merons critics are concerned the U.S. and Israeli government are deeply worried about the traditional doctrine of command responsibility. Until the recent acquittals it was sufficient for the prosecutor to prove that a military commander or political leader was aware of the risk that subordinates or forces allied with his army or government would commit a war crime in order to get a conviction.
Under this practice, political leaders and high-ranking officers in the United States and Israel ultimately could risk being held responsible for war crimes committed by their soldiers or by foreign forces that their governments support with arms.
”The perception among my colleagues is that Meron takes instructions from the US government and that this reigning in of the legal standards – as we have seen with the acquittals - would have implications for the US and probably Israel. And WikiLeaks does not help him,” said a former legal advisor to the tribunal who wished to remain anonymous in order to avoid putting his career opportunities at risk.
This newspaper contacted Mr. Meron for comment but to no avail.
Most international law experts contacted viewed the controversy as so delicate for the court that they preferred not to have their names made public.
A former senior official at the UN who has worked on international humanitarian law said:
”I suspect that the allegation might not be without foundation, in the sense that the militaries of key states were extremely worried about the implications of the standard set by the trial court, and the Appeals chamber’s overturning of the judgment removed that concern.”
The former UN official continued:
”The Appeals judges response would be that it is vital to ensure that innocent persons are not convicted. But many of the critics argue that the case could have been overturned on some grounds but not all and at least could have been returned for a rehearing.”
Human Rights First’s Gabor Rona also takes exception to the acquittals.
”There’s no doubt that these acquittals, in which Judge Meron had a substantial role, are based on newly established legal standards that are a dramatic setback to accountability in general and command responsibility in particular for war crimes and crimes against humanity,” Rona said.
”The acquittals contribute to an already perverse balance in favor of impunity for those who make illegal policy and give illegal orders, while underlings who carry out such illegal orders, often under great pressure and at risk of severe punishment for failing to do so, are then punished for doing so.”
Rona noted that the first example of a court using commanders responsibility as a legal standard was a US military tribunal’s conviction in the Phillippines in 1946 of the Japanese general Tomoyuki Yamashita for war crimes. His soldiers had among other atrocities committed killed US prisoners of war. The sentence was appealed to the US Supreme Court but upheld.
If the legal standard employed by Judge Meron and other appeals judges were to become widely accepted at other war crimes tribunals and at the International Criminal Court it probably would become much harder to get a conviction of former Serb General Ratko Mladic and Radovan Karadzic, the former leader of the Bosnian Serbs. Both are awaiting trial in the Hague.
Even getting a conviction in the case against former president of Liberia, Charles Taylor, at the special court set up in Sierra Leone becomes more tricky, said Rona.
Still Rona refrains from ascribing Judge Meron any political motives.
”He has a very strong reputation in international criminal law. He is an authority who people listen to. I do, too. There is nothing I know about him that would lead me to think that his motivation would have to do with his politics or his nationality.”
And indeed, in regard to the conflict between Jews and Palestinians over territory Meron can claim to be on the right side of international law.
Following the Six-Day war in 1967 and Israel’s occupation of the West Bank and the Gaza Strip Israel’s then Prime Minister Levi Eshkol tasked Meron with examining whether building Jewish settlements in the occupied territories would be allowed under international law. Meron noted in his study that it would be a violation of the Fourth Geneva Convention.
In the recent interview with the BBC Mr. Meron restated his view.
”The opinion I gave back then is my best reading of the Geneva convention and I do believe settlements are a major problem. The UN secretary general spoke about it recently and I entirely agree with him,” the president of the ICTY said.
Meron worked as Israel’s ambassador to Canada and to the UN in New York. Shortly thereafter he settled in the US and became a citizen in 1984. In 2000-01 he worked as a an advisor on international law at the State Department.
Associate professor in forensic psychiatry at Harvard Medical School, Harold Bursztajn, has among other subjects studied judges’ decision-making. Although he refrains from speculating about people he has not examined professor Bursztajn pointed to a classic anti-Semitic trope.
”The language of a Jew serving a master has been used before in connection with anti-Semitism,” he said.
”One has to be careful, unless there is evidence you don’t jump to a conclusion. It is biased to have only one hypothesis. There has to be another one. You have to give an authority like Judge Meron the benefit of the doubt. People have been falsely accused with a joint criminal enterprise. Some judges change their minds when they get older.”
As to Judge Meron’s personal view of jurisprudence the judge told the BBC’s Sackur:
”Would you want to be part of a criminal justice system in which there was a 100 pct. rate of convictions? No, we have to examine every case according to standards we apply which have to prove guilt beyond a reasonable doubt … Criminal justice cannot be a synonym for conviction. Acquittals … show the health of the system.”
Other international law experts have come to the rescue of Meron. The American-born Associate Professor at the Melbourne Law School, Kevin Jon Heller, is plainly upset with Judge Harhoff.
"There is absolutely no evidence in the WikiLeaks documents that Meron have taken instructions from the U.S. and Israel,” said Heller on the phone from South Africa.
He continued: ”If there is a controversy it should be about the propriety of revealing a letter about internal deliberations at the Tribunal. Harhoff is sitting on this case against Vojislav Sesejl, which is complicated. I would recuse him from the trial, he is prone to convict.”
Since 2007, Harhoff has served as a judge in the trial of Sesejl, a former rightwing and nationalist Serb politician charged with crimes against humanity. Sesejl is accused of having ”aided and abetted” the persecution of Croats and Bosnian Muslims, many of whom were displaced, some killed and others raped.
The verdict is scheduled to be announced on September 30.
Critics of Tribunal President Meron also point to striking examples of unusual flexibility in Merons judgment - examples they use to justify their suspicion of political influence.
One instance is the case against the two high-ranking Croatian officers, Ante Gotovina and Mladen Markač, who were found guilty in the first instance of having directed indiscriminate artillery fire against towns in the Serb-inhabited province of Krajina. The objective of ”Operation Storm” were allegedly to oust the local Serb population.
But a majority in the Appeals chamber consisting of presiding Judge Meron and two other judges rejected the argument that a rule exists in the laws of war which would define the distance between a military and civilian target. In its ruling the Trial court established it is a war crime if a civilian is hit 200 meters or farther removed from a legitimate target.
”The Appeals chamber thought it silly to set a distance. Many of us believe that this is due to U.S. fears that drone attacks in Pakistan - which has killed many civilians - can be defined as a war crime," said an international law expert.
Still, it is impossible to buttres the view held by Harhoff and others that Meron and other judges were influenced in this case by their national governments.
”It seems there would have been a lot of times over the last 15 years for the US to be concerned about attacking civilians with drones, so why would they put pressure on Meron now? It seems like an awful small fish,” said Heller at Melbourne Law School.