The Real Judge Meron Scandal at the ICTY

by Kevin Jon Heller

I have refrained from weighing in on the recent scandal at the ICTY concerning a letter written by the Danish judge, Frederik Harhoff, that accuses the President of the Tribunal, Judge Theodor Meron, of pressuring his fellow judges into acquitting high-profile defendants such as Gotovina and Perisic. I have done so not because the scandal isn’t worth mentioning, but because I have little to add to what Dov Jacobs has written in two excellent posts — here and here — at Spreading the Jam. Like Dov, I think the scandal is vastly overblown, revealing little more than business as usual at the international tribunals. In fact, if I have any disagreement with Dov at all, it’s concerning the propriety of Judge Harhoff writing the letter in the first place. Dov says one can “question the propriety” of the Judge writing the letter and sending it to 56 of his friends and colleagues. I’d go much further than that — I think it was deeply unethical, and far more scandalous than any of the allegations in the letter, for Judge Harhoff to reveal confidential discussions between the judges. Can you imagine if a legal officer or intern had written the letter? He or she would have been fired immediately. The fact that Judge Harhoff still has a job indicates the need, as Michael Bohlander has pointed out, for a binding code of judicial ethics at all international criminal criminal tribunals, not just at the ICC.

That said, the brouhaha about Judge Harhoff’s letter did lead me to a WikiLeaks cable dated 27 July 2003 that recounts a discussion between Judge Meron, then also the President of the ICTY, and an unnamed American ambassador — presumably to the UN — about Carla Del Ponte, who was nearing the end of her term as Prosecutor at the time. Judge Meron’s statements, as summarized by the cable, are truly shocking. Here is the summary:

President Theodor Meron of the International Criminal Tribunal for the former Yugoslavia (ICTY) met with the Ambassador on July 16 to convey his serious concerns about the performance of Chief Prosecutor Carla Del Ponte and the risk the renewal of her tenure would pose to the completion strategy. Meron urged the USG to oppose renewal and expressed reservations about a one year extension of her mandate. Meron further advised that the UN secretariat had contacted his chief of staff on July 15 to “float” the idea that no action be taken by the Security Council in September and that Del Ponte term simply be allowed to lapse. Under such an approach, which Meron found promising, the Deputy Prosecutors of the ICTY and ICTR would serve as “acting” prosecutors of their respective offices until replacements were named.

And here are a couple of the most disturbing snippets:

On penal policy, Meron noted that the OTP brings prosecutions that are too broad in scope which result in unnecessarily lengthy and resource consuming trials. Instead of focusing on a few significant charges that are supported by strong evidence, the OTP brings indictments with too many charges of which many are ultimately not readily provable. He added that the presiding judge of a trial chamber had complained to him this week that in a small case with a mid-level defendant, the OTP had informed the chamber that it planned to present 80 to 90 witnesses. This request prompted the defense to request a similar number of witnesses, guaranteeing a long and complex trial. “This is no way to run a court,” Meron observed.

Meron expressed to the Ambassador his support for the splitting of the prosecutorial functions noting that the ICTR deserves a “first class prosecutor.” He also noted that concerns about divergent penal policies arising from such a split were unwarranted because the appeals chamber would continue to preside over both tribunals, thereby ensuring a consistency in approach and jurisprudence.

Needless to say — I hope! — it is completely unacceptable for a judge to encourage a state to not re-appoint the Prosecutor of his tribunal because he disagrees with the way she has exercised her prosecutorial discretion or because he doesn’t believe she is a “first class prosecutor.”. Art. 16(2) of the ICTY Statute provides that “[t]he Prosecutor shall act independently as a separate organ of the International Tribunal.” Judge Meron’s secret meeting with the US Ambassador was inconsistent with any notion of the OTP’s independence. Indeed, it was a frontal assault on it.

The New York Times has reported that “a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the election for tribunal president this fall.” It will be a shame if that rebellion is based on, or furthered by, the unsubstantiated allegations in the Harhoff letter. Nevertheless, given Judge Meron’s evident willingness to undermine the Prosecutor over disagreements concerning matters committed solely to the Prosecutor’s discretion, it’s hard not to take the side of the rebels.

http://opiniojuris.org/2013/06/17/the-real-judge-meron-scandal-at-the-icty/

12 Responses

  1. Kevin,
    I agree with virtually all of the points in your post. 
    1. Do you think that the Security Council or General Assembly should relieve Harhoff of his duties? Such an action would be unprecedented, but I simply cannot conceive of how he can continue to serve on the Court after revealing judicial deliberations and publicly smearing one of his colleagues.  To the extent that the U.N. rules apply to the ICTY’s judges, Regulation 1.2(i) prohibits  the communication of confidential information obtained from their official positions.    
    2. I also object to Meron’s conduct (as revealed in the Wiki leaks cable) but I think the propriety of his conduct is a bit more complicated than you have presented.  Meron was not only a judge but the ICTY’s President and seemed to be channeling the concerns of the UN Secretariat and others about Del Ponte’s leadership.  The most problematic aspect to me was revealing the presumably private complaints concerning Del Ponte from one of his colleagues.  
    In any event, this suggests to me that the positions of President and judge are to some extent incompatible.  Tribunal presidents are often going to have make comments about their tribunals’ operations (both publicly and in private) whereas judges should ideally avoid such comments.  

  2. Judges are not subject to ICTY staff rules. Also, Judges are bound not to disclose what happens in deliberations, but are free to discuss with anybody other matters related to the Tribunal; while it might be improper to do so, I cannot see any breach of rules (ethical or otherwise). Judge Harhoff did not discuss any of the cases on which he sat/is sitting. 
    Judges are actually – together with the Prosecutor, the Registrar, and the spokesperson – the only individuals that do not need to clear in advance any statement made to the press with the Tribunal; it can thus be argued that the freedom to communicate with friends is even less restrained.
    More generally, most Judges at the ICC and ICTY have often expressed to friends and scholars their views on their colleagues and their work environment – those of us who comment on international criminal law know this very well. Judge Harhoff is only ‘unlucky’ in that his written comments have been reported, that is the whole difference.

  3. Rather than attacking specific persons, maybe this episode will assist in kicking off a reflection on the system of judges at international tribunals, so as to make international judges independent but accountable in ways similar to most advanced domestic legal systems.

  4. Response…
    It is my view that confidentiality of judicial decision making cannot attach where behavior is unethical. My understanding of Judge Harhoff’s allegations is that considerations of political expedience have superceded those of fact and law in judicial decision making at the ICTY. It is harder to imagine a more serious allegation against an international tribunal, and Judge Harthoff was under absolutely no obligation to keep his concerns on this issue to himself. Indeed, I suspect that what he has written is equally applicable to judicial decision making at the ICTR.
    With respect to the wikileaks cable, I agree that it was improper for a judge to discuss the merits of individual prosecutors, however, I believe Meron was right in complaining that the Prosecutors (both at the ICTY and ICTR) have brought cases that are too wide in scope, and that this results in a waste of resources. I suspect that if the international community has not established tribunals for states such as Burundi or Liberia it is because the existing tribunals are too expensive and have been run inefficiently.
     

  5. Kevin, thank you for your support on the general approach to the Harhoff letter. I agree with you that if an ALO had done this, he would probably be history already. But I don’t see how the ICTY, as an institution, can ignore this letter. It might take a little longer than for an ALO, but I cannot imagine that there won’t be consequences for Harhoff.
    As for Meron, I have a quote for you:
    “I was very pushy. I was always prodding the prosecutor. I was so impatient, in a way; I was even more pushy and inquisitive than any prosecutor. She probably felt that I lacked distance, coming from a civil law country where there is no watertight division between prosecutor and judge. Perhaps I was over-stepping my duties as a judge. But I explained many times that I was not only a judge, passive and waiting for the prosecution. I was acting as a president of an international tribunal. Leadership meant to push for action also. I was the only one with a pass able to go to Goldstone’s office. Other judges were not allowed to go up to the prosecution floor. But I would go up almost every day and talk to Goldstone when he was not travelling. Of course we never talked about specific cases – this would have been utterly improper. We spoke about his prosecutorial strategy, so that I could among other things decide quickly to what Trial Chamber to assign the forthcoming cases.”
    Interview by Cassese, p. 52
    Later on on this interview, Cassese explains how he got his fellow judges to issue a statement complaining of the the Prosecutorial Strategy of Goldstone. Now that was certainly a judicial infringement of Prosecutorial independence which you would denounce…
    To be honest, I find the cable incident far less shocking than you. The Prosecutor being renewed by the UNSC, I don’t find it so strange that the States would ask their judges, who work with the Prosecutor daily, what they think of the Prosecutor. This has nothing to do with the rule on the independence of the Prosecutor in the Statute. If not, we should be questioning all the reasons why States name International Prosecutor, to make sure that there aren’t any that might be linked to a strict notion of independence. At the very least, I think that there is a break in causation between Meron giving his opinion of the Prosecutor to the US Ambassador and any effect on Prosecutorial independence, that there certainly wasn’t in the Cassese example. This makes things slightly less clear cut than you suggest in my opinion.

  6. Milan,

    I’m not sure whether Harhoff should be relieved of his duties. I’m a bit dubious, because nothing in the Staute or RPE even addresses removing a judge (unlike at the ICC). But I would certainly file a motion to recuse if I was Seselj’s lawyers, arguing that Harhoff’s letter creates at least the perception that he is prone to convict.

    As for Meron’s role as President, I don’t think that matters. The President has no role in the appointment or reappointment of the Prosecutor under the ICTY Statute or RPE, nor is supervising prosecutorial strategy (outside of the relevant provisions of the ICTY Statute) part of his brief. So he should not have been channeling anyone’s concerns to anyone other than, perhaps, his fellow judges — and he especially should not have been channeling them to his own government.

    That said, I agree that the roles of President and judge are somewhat incompatible, as the 2003 situation demonstrates with remarkable clarity…

  7. John,

    Really? Revealing that Judge Meron (supposedly) pressured the other judges into adopting particular legal doctrines in their cases is not revealing the judges’ deliberations? And why, exactly, does it matter that Judge Harhoff only commented on the deliberations in other cases?

    I’m glad you put “unlucky” in quotes. Judge Harhoff was either incredibly naive in thinking that no one among his 56 “friends” might reveal his letter or sent the letter because he wanted it revealed. I’m not sure which is worse.

  8. Charles,

    There is a very significant difference between complaining that prosecutors are wasting resources by bringing cases too wide in scope (which which I completely agree) and urging the most powerful state in the world not to reappoint the Prosecutor of a tribunal. The former, arguably, is fine; the latter is completely unacceptable, especially given that — as I noted in an earlier comment — neither the judiciary nor the ICTY President have any role in appointing or reappointing the Prosecutor.

    We’ll have to disagree about what Judge Harhoff did. As far as I’m concerned, his letter contains nothing but unsubstantiated and wholly speculative allegations about Judge Meron. In the absence of actual evidence that Judge Meron was doing Israel and the US’s bidding, revealing the tribunal’s confidential deliberations strikes me as without any justification whatsoever.

  9. Dov,

    I do indeed find Cassese’s actions with regard to the judges’ statement completely unacceptable, for the same reason I find Judge Meron’s actions completely unacceptable. But I don’t think you can reduce what Judge Meron did to giving his opinion to the US about Del Ponte. I actually think that is unacceptable in itself, though I acknowledge reasonable people can differ. But Judge Meron not only told the US what he thought about Del Ponte, he urged the US to oppose her reappointment and explained how the OTP should run in her absence. How anyone can think that is okay (and I’m not saying you do) is beyond me.

  10. pushing other judges to adopt new legal doctrines should be the primary focus here — especially when those new legal doctrines are not supported in prior customary international law concerning the reach of individual responsiiblity.  The ICTY is supposed to apply law, not to “make it up” on their own.

  11. Hi Kevin,
    I’m not sure this is so improper.  If the Admin Judge in a US District Court is not enamored of the US Attorney, and the Judge is friendly with the state Congressional reps and with people in the Executive Branch who advise the President on appointments, do you really think they’re not going to say anything in a confidential capacity? 
     
    At most, you have the appearance of impropriety. 
    No one seems to be bringing up the fact that for all of Meron’s influence, del Ponte was reappointed to a second term. 
     

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