What Judge Harhoff Hath Wrought

by Kevin Jon Heller

I considered adding a question mark to the title of this post, but there’s really no need. I argued a couple of days ago that the real scandal concerning Judge Harhoff’s letter was the Judge’s willingness to reveal confidential discussions between the ICTY’s judges. We now have to acknowledge another aspect of the scandal: quite understandably, defence attorneys are making use of the letter to attack convictions in Judge Harhoff’s cases. Just yesterday, counsel for Rasim Delic filed a motion with the Tribunal that seeks to overturn Delic’s convictions — posthumously, no less — on the ground that the letter reveals “serious misconduct and breach of duty” by Judge Harhoff. Unfortunately, I cannot cut-and-paste from the motion. Summarizing, it argues (1) that Judge Harhoff evidently believes that the ICTY exists to convict high-ranking defendants; (2) that Judge Harhoff is willing to convict on the basis of feelings and suspicions instead of reasonable doubt; and (3) that Judge Harhoff does not understand the ICTY’s jurisprudence, particularly concerning command responsibility.

I don’t want to get into the first or second points, although I agree with the defence that the letter creates at least the perception that Judge Harhoff is pro-conviction and not particularly concerned about proof beyond a reasonable doubt. The third point, however, seems unassailable to me. Consider the following passages from Judge Harhoff’s letter:

But that is exactly what the commanders get paid for: They MUST ensure that in their area of responsibility no crimes are committed, and if they are they must do what they can to prosecute the guilty parties. And no one who supports the idea of ethnic eradication can deny the responsibility of, in one way or another, contributing to the achievement of such a goal. However, this is no longer the case. Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.

The result is now that not only has the court taken a significant step back from the lesson that commanding military leaders have to take responsibility for their subordinates’ crimes (unless it can be proven that they knew nothing about it)…

Life is too short to patiently explain why almost nothing in the paragraphs above is accurate. Suffice it to point out that, according to the final sentence, Judge Harhoff believes that military commanders bear the burden of proof with regard to the mens rea of command responsibility. It’s deeply troubling to hear an ICTY judge take that position — and it certainly warrants the Tribunal taking a long look at Judge Harhoff’s cases involving command responsibility.

I have no idea whether the Tribunal will be willing to reverse convictions based on (mis)statements made in an informal letter. I think it should, but I’m skeptical. That said, I see no way that Judge Harhoff can continue to sit on the Seselj case, despite the Tribunal’s insistence that he will (for now). The appearance of bias, if not the actual existence of bias, is simply too great.

Something tells me Seselj is busy preparing a motion to recuse right now…

Note: Edited because Marko Milanovic is picky…

http://opiniojuris.org/2013/06/22/what-judge-harhoff-hath-wrought/

5 Responses

  1. Hi Kevin – I agree on all points, except for the very last one. Seselj’s lawyers aren’t doing anything because he is representing himself (that he was allowed to do so by the Appeals Chamber is of course a major contributing factor to the unfolding catastrophe that is his trial). He has some minions from hims political party running errands for him but that’s it. The other contributing factor is the presiding judge in the case – and with regard to judges’ familiarity with case law and conception of the judicial function etc, may I recommend that you take a quick peak and the same judge’s dissent in the Prlic case, running at some 500 pages in French. It is because of this, and because if I’m not mistaken there is no stand-by judge in the Seselj case, that Harhoff is very unlikely to resign until the Seselj judgment is delivered. Were he to do so, the whole thing would go back to square one, and the proceedings have already been going on for ten years.
    Finally, may I just say that there’s something really delicious in having this necromantic motion for acquittal, and I really can’t wait to see how the decision rejecting it (the most likely outcome, no) will deal with the whole Harhoff stuff.

  2. Someone had better let the prosecutors at Guantanamo Bay know that their government is conspiring with Israel to narrow the scope of complicity under international law. Apparently they didn’t get that memo.

  3. The motion filed by Counsel for Delic is quite pathetic given that: (a) Delic passed away some years ago; and (b) John R.W.D. Jones QC – Delic’s former Co-Counsel – is Markac’s (Gotovina co-accused) Co-Counsel.
    John R.W.D. Jones QC should be careful not to be caught out at his own game with the Prosecution filing a motion for review of the Gotovina and Markac Appeal Judgement, given the content of the Harhoff’s letter!

  4. I am afraid that instead of listening to the content of the worrying message concerning the crucial issue of the indpendence of international criminal justice you are trying to kill the messenger.

  5. The message is unconvincing — nothing more than idle speculation by a judge who has a tenuous grasp of ICTY jurisprudence. And the messenger acted profoundly unethically.

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