Fellow judges support ousted colleague’s criticism of Hague tribunal

Professor Frederik Harhoff believes his recent removal as judge from the International Criminal Tribunal for the former Yugoslavia was legally unwarranted, and some legal experts from within as well as outside the tribunal concur

One of Denmark’s leading experts on international law, Frederik Harhoff, believes he was wongfrully dismissed as a judge at the International Criminal Tribunal for the former Yugoslavia (ICTY).

According to Mr. Harhoff, his dismissal had no proper legal basis in the statutes of the court. Moreover, he was denied a chance to defend himself against allegations that he had called his own impartiality as a judge into question when, in a private email, he expressed concerns about new case law at the court.

The letter was sent to 56 Danes and subsequently intercepted by the Danish tabloid paper B.T. and published in June.

Mr. Harhoff’s objections are endorsed by several fellow judges at the war tribunal, who prefer to remain anonymous, as well as by an American law professor, contacted by Information.

The Danish judge was accused by a Serbian politician - charged with war crimes - of having expressed bias against Serbs in general and senior military officers in particular in his criticism of a recent case law revision at the Hague Tribunal.

The complaint was brought before a panel consisting of three judges who found, by a vote of 2-1, that the public could possibly, by reading Mr. Harhoff’s letter, perceive a bias against military officers in command authority. According to the panel, this constituted sufficient reason to recuse him as a judge from the trial against the radical Serb politician, Mr. Vojislav Seselj.

Jens David Ohlin, professor of law at Cornell University, believes the outcome of the case against Mr. Harhoff should be seen against the backdrop of ’a culture of silence’ that for many years has surrounded the ICTY.

”Criticism from the outside is okay, but for a judge to have said something like this, even in a private letter, is the biggest crime. He went afoul of a culture of not criticizing the court from the inside. That alone explains the negative reaction from inside the court and the drastic remedy. For a judge to have done that is the real scandal,” Professor Ohlin said.

Understanding the outrage

Mr. Harhoff himself believes his removal was unwarranted: “I was recused because of the anger that I provoked in the court by criticizing the recent acquittals and questioning the president’s role. I understand the outrage. But in ICTY’s legal system, outrage is not a reason for recusal,” he told Information.

Other experts in international law, however, believe that by disqualifying Mr. Harhoff the panel of judges acted in accordance with the court’s procedures and for good reasons, too. This is the point of view taken by Dov Jacobs, associate professor of law at Leiden University in the Netherlands, and Steven Freeland, professor of law at the University of Western Sydney in Australia.

”The panel of judges was supposed to assess what an objective outsider would perceive as bias, and two of the judges thought it possible the public may interpret the letter this way. This is the procedure. It may have been useful for the judges to hear Mr. Harhoff’s view, but it was not a trial, in which you can defend yourself,” said Freeland, who is also a visiting professor at iCourts Centre at the University of Copenhagen.

But new information obtained by Information, in part from sources at the Hague Tribunal and in part during an interview with Mr. Harhoff, reinforce doubts as to whether the procedure against the Danish judge was truly impartial and based on factual evidence. Or whether political and disciplinary considerations were really behind his removal from office.

Furthermore, Information learned that there is growing dissatisfaction among the 22 judges at the International Criminal Tribunal for Yugoslavia with President Theodor Meron’s brusque management style and controversial handling of appeals cases.

Change of case law

Mr. Harhoff wrote his email late one night out of frustration with the dramatic shift in the Tribunal’s case law that President Meron had managed to introduce in the Appeals Chambers’ acquittal of the Croatian General Ante Gotovina in November 2012 and the Serbian General Momcilo Perisic in February 2013 and the subsequent acquittal in the trial chamber of two Serbian intelligence chiefs in May.

In the Perisic case, the Trial Chamber’s conviction was overturned by the Appeals Chamber by adding, without further explanation, the requirement that the accused general, in addition to his military assistance and his knowledge of the commission of the crimes, should also have given the direct perpetrators a “specific direction” to commit those crimes.

In a subsequent case against the two Serbian intelligence officers, Jovica Stanisic and Franko Simatovic, the judges in the trial chamber felt obliged to follow the new practice and acquitted them.

Introducing this new standard represented a significant shift in the established practice at the court for convicting senior military officers. This is confirmed by James G. Stewart, associate professor of law at the University of British Columbia, who in a recent study found that the stricter standards of proof previously were only used in extremely rare cases, and never to acquit anyone.

In his study Mr. Stewart showed that General Perisic was the first military commander to be acquitted according to the principle that it must be proven that a general gave his subordinates “specific direction” to commit a crime.

”President Meron’s Appeals Chamber argued that it was already settled law, but this is duplicitous reasoning. My study shows it was not settled at all,” Stewart told Information.

The Appeals Chamber’s acquittal of General Perisic in February led to speculation as to whether the Special Court for Sierra Leone would apply ICTY’s new ”specific direction” standard and acquit former Liberian President Charles Taylor for war crimes in his appeals case this past September.

Eventually, this scenario never materialized. Instead, the appeals judges at the Sierra Leone court rejected the “specific direction” standard and delivered a sharp rebuke to the judgment rendered by President Meron and his fellow judges at the ICTY.

Charles Taylor was accused and convicted in trial court of ’aiding and abetting’ war crimes in Sierra Leone's civil war. In its decision, the Appeals Chamber questioned whether at all, under the new standard, it would be possible to prove to whom the accused would actually have given his “specific direction” to commit the crimes.

The judges concluded that the persons directed by Mr. Taylor could only be the actual perpetrators on the battlefield, but that it would be impossible to establish any direct link between the accused and the direct perpetrators, because the accused would very rarely know who they were or where they were.

By insisting on applying this additional requirement, it would therefore be virtually impossible to hold any person in command authority criminally liable as an ”aider or abettor” to the commission of war crimes.

And this was exactly the objection that Judge Harhoff had adressed in his private email.

”Naive and stupid”

Speaking to Information, the deposed judge insisted that he never imagined his email would become public. Most of his colleagues at the court, however, find this very hard to believe. ”Sending this email was not only naive, but also stupid,” said a fellow judge at the ICTY, who is sympathetic to Mr. Harhoff and agrees with some of the points made in his email.

But Information’s sources at ICTY revealed that apart from widespread annoyance at Judge Harhoff’s ”naivety”, a clear majority of the 23 members of the panel of judges actually concurred in the criticism that the Dane levelled in his email of June against Mr. Meron’s direction of the court and the unexpected acquittals in the recent appeals cases.

At the time, ICTY had 18 permanent and 5 ad litem judges with Judge Harhoff belonging to the latter group.

”More than half of the 23 and exactly half of the 18 permanent judges were critical of Mr. Meron,” a judge who spoke on condition of anonymity told Information.

Still, despite criticism against him allegedly being so widely shared at the court, Judge Meron managed to get himself re-elected October 1 for another two-year term with 12 votes to 6 against his rival candidate, the Korean Judge O-Gon Kwon .

Outsiders have been wondering why some of President Meron’s critics eventually decided to vote for him. But there is a pretty good explanation for this apparent paradox, a judge at the ICTY said.

”Mr. Meron is really good at running a campaign American style by seeking out every judge in advance and making ’deals’ with them,” the source said.

These ’deals’ may have been decisive in determining the election outcome. In a similar vein, Mr. Meron was able to expand his power, when in 2011 he was appointed president of the successor court to the two tribunals for Yugoslavia and Rwanda. The ’final’ court thus emerging is known as UNMICT (United Nations Mechanism for International Criminal Tribunals).

UNMICT is supposed to take care of pending cases and other business. The UN has appointed 25 judges to sit in UNMICT, eight of whom come from the Yugoslavia Tribunal .

”These judges do not get paid unless they are assigned to cases, and it is Mr. Meron who decides to whom each case should be assigned. It is probably for this reason that some of his critics voted for his re-election in October,” the ICTY-judge said.

A flawed procedure

Although Mr. Meron chose to step aside and let the court’s vicepresident, Carmel Agius, handle the delicate matter of assessing Harhoff’s impartiality, Information’s sources within the court raised doubts about the procedure that led to his disqualification.

The South African judge, Bakone Justice Moloto, was appointed to preside over the panel of three judges that had to consider the Danish judge’s fate. In addition, Judge Burton Hall from the Bahamas Islands and Judge Daqun Liu from China were seated on the panel.

Mr. Harhoff was quite surprised to learn of Mr. Moloto’s appointment since the South African himself had made no secret of his views on Judge Harhoff’s criticism of the Appeals Chamber’s new case law. In the corridors of the Tribunal, Judge Moloto had been very vocal in his condemnation of Mr. Harhoff’s mail.

Mr. Moloto had an additional reason to counter Mr. Harhoffs criticism of the new case law.

In fact, as a judge in the Trial Chamber that had convicted general Perisic in the first instance, the South African strongly opposed the majority's conviction of the accused and wrote a dissenting opinion in which he argued that the general should be acquitted, because the Prosecution had not proven that the general had given “specific direction” to the perpetrators.

In his dissenting opinion, Judge Moloto wrote that it was not enough that general Perisic had been aware of the crimes committed by the Bosnian Serbs in Bosnia, who received arms and intelligence from the Serbian army through general Perisic. It also had to be proven that the accused had in fact ordered the Bosnian forces allied with Serbia to commit the crimes in question.

”So the presiding judge of the panel who was supposed to pass judgment on me demonstrably disagreed himself with my main argument in the email,” Mr. Harhoff stressed.

“He could have been said to have been just as biased against me as he claimed I had been against the accused.”

According to the court’s own statutes, a judge can be disqualified if “a reasonable and well-informed third party apprehends bias, on the part of the judge, against a defendant.”

In their majority decision rendered August 23, Judges Moloto and Hall found that two phrases in the email constituted proof that Mr. Harhoff was of the opinion that an indicted Serbian general could be found guilty without necessarily being proven guilty ”beyond a reasonable doubt”.

The first phrase read:

”Right up until the fall of 2012, it had been more or less set practice at the court that military commanders were held responsible for war crimes committed by their subordinates during the war in the former Yugoslavia from 1992-95 ...”

In the second phrase, Harhoff wrote: ”The latest judgments here have brought me before a deep professional and moral dilemma”.

No demonstrable bias

As an ICTY judge put it to Information: ”I do not see any bias against Serb generals here and certainly not against Vojislav Seselj”.

”Unfortunately, the majority on the panel managed to confound two different issues. They believed that what Judge Harhoff did was harmful to the tribunal and that he should be punished for it, but this is not the same as him being biased against Mr. Seselj”.

Professor Freeland acknowledged that the panel may have taken certain ”pragmatic” considerations into account.

”I think it would be very difficult for a judge to say, even if he really thought so, that ’my colleague has really disgraced himself’. That would besmirch his reputation even more. It is not something judges would want to do to each other,” Mr. Freeland said.

”So, on the one hand the judges would have to ask themselves whether they wanted to have a judge, whom they used to hang out with at the coffee bar, be dismissed for unprofessional conduct. On the other hand, Mr. Harhoff remaining in office would probably compromise the court's integrity. So from a pragmatic point of view the majority decided to confine itself to proving a perceived bias.”

But Cornell professor Ohlin drew attention to what he considered to be a flaw in the majority’s reasoning.

”When I read Mr. Harhoff’s email, I didn’t perceive any bias. It would be a different matter if he had made any specific mention of Mr. Seselj, but in fact, he sticks to critizing President Meron and disputing the new practice,” said Ohlin, whose own research in international humanitarian law has been widely quoted in war crimes trials in The Hague.

Professor Ohlin fails to understand how Mr. Harhoff’s reference to the Appeals Chamber’s break with a ”more or less set practice” could imply any bias. Mr. Ohlin pointed out that everyone was aware that generals had been convicted of ’aiding and abetting’ war crimes, even if it could not be proven that they had given any specific direction, as long as they had been aware of what was going on. Such was, indeed, the “more or less set practice” at the ICTY.

The majority of the panel focused in particular on Judge Harhoff’s conclusion that the stricter standards of proof had brought him “before a deep professional and moral dilemma”.

According to Professor Ohlin some observers have interpreted this to mean that Mr. Harhoff would convict individuals, even if their conduct does not satisfy the Appeals Chamber standard for specific direction; that is, he would ignore the binding jurisprudence of the Appeals Chamber. Their claim would be that this is evidence of his bias against particular defendants.

”But this conclusion is doubly wrong,” said Mr. Ohlin.

”First, I don't think this is the correct interpretation of Mr. Harhoffs’ reference to his professional dilemma. I think he was referring to ways that he could criticize the Appeals Chamber, up to and including resigning or speaking publicly about his views. Second, even if you don't interpret his statement this way, it is not evidence of bias. It is evidence of insubordination and obstinance in the face of the Appeals Chamber direction. But that's not the same thing as bias.”

Dov Jacobs, associate professor of International Law at Leiden University in Holland, argued instead that he did perceive some bias when reading Harhoff’s email for the first time.

”I consider myself to be a reasonable and informed observer and I do not find it an unreasonable interpretation of the email that it might create a perception of bias, which is all you need to prove for establishing lack of impartiality. This was my intepretation when I read the letter,” Mr. Jacobs said.

No right to defense

Not only does Harhoff feel that he was wrongfully dismissed and in violation of the court's own statutes. He was even denied the opportunity to be heard by the panel.

In an internal memorandum from July, subsequently made public, the Danish Judge provided an analysis of his own email in order to refute the allegation of being biased. However, the panel refused to include his memorandum in its assessment on the grounds that Judge Harhoff was not a party to the trial. In Mr. Harhoff’s view, this was contrary to well-established standards of due process of law.

”It goes against our statutes to deprive Judge Harhoff of the right to defend himself,” said one of the Dane's fellow judges at the ICTY.

”The panel also claimed that his opinion was not relevant to its decision, that it was all about the email and that therefore, he should not be heard. But this is absurd. Of course the decision very much concerns Harhoff himself. He loses his position and is having his reputation harmed! Maybe this is how judges are dismissed in countries that follow a British common law tradition, but in Europe, it’s unheard of,” objected the judge.

According to Professor Ohlin, a fairer approach would have been to let all judges determine Mr. Harhoff’s fate by taking a vote in a plenary session. ”This is the rule followed by the International Criminal Court”, he said.

Associate Professor Jacobs agreed that the procedure used to disqualify Judge Harhoff ”might not have been the most relevant way to do it.”

”For ICTY not to justify Harhoff’s dismissal by his ’unprofessional’ behavior suggests that it is a weak institution, incapable of dealing with the issue head on,” Jacobs said.

Hanne Petersen, professor of law at University of Copenhagen, believes that the Harhoff case ought to prompt UN courts to be more open and transparent.

”This would strengthen their democratic legitimacy. One can hope that this affair will lead to some deep soul-searching within the ICTY”, she said.

Information asked the ICTY press office for comments from Judges Theodor Meron, Carmel Agius and Bakone Justice Moloto.

Press officer Magdalena Spalinska provided the following answer: ”It is against judicial practice and tradition for judges to comment on specific cases, internal deliberations or rumours.”

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