Welcome to Beyond the Hague — and a Great Catch on Judge Harhoff
I want to welcome a promising new member of the international criminal law blogosphere — Beyond the Hague. The blog is refreshingly international, as befits an ICL blog; its current contributors are Alex Fielding, Manuel Eynard, Maria Eleni Vignoli, Maria Radziejowska, Paul Bradfield, and Peter Dixon.
I particularly want to single out a fantastic post by Alex Fielding on Judge Harhoff’s notorious attack on the Appeals Chamber’s adoption of the specific-direction requirement for aiding and abetting in Perisic. Fielding notes that, in fact, Judge Harhoff was part of the unanimous Trial Chamber judgment in Stanisic & Zupljanin in which the Trial Chamber explicitly adopted the specific-direction requirement. Here is para. 107 of the judgment (emphasis added):
107. Aiding and abetting is a form of accomplice liability. The Appeals Chamber has held that:
an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime. […] The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.
Fielding’s response is worth quoting at length:
The question that remains, is if Judge Harhoff was so outraged by the legal and factual conclusions of the Perisic Appeal Judgement, why did he then endorse the very point of law that resulted in the acquittal of Perisic, as well as Stanisic and Simatovic? What recourse does a trial judge have when he/she disagrees with the Appeals Chamber’s on a point of law?
Judge Harhoff could certainly have written a separate and dissenting opinion on the specific direction requirement. Trial judges have disagreed with the Appeals Chamber in the past, notably Judge Lindholm who filed a separate and partially dissenting opinion to the Simic et al Trial Judgement to “dissociate [him]self from the concept or doctrine of joint criminal enterprise in this case as well as generally”. Judge Harhoff could even used some of the “tenacious pressure” that Judge Meron is accused of to persuade his fellow trial judges to follow his lead (the late Lord Denning would certainly have been proud). But instead he undermined the tribunal for which he serves by disclosing confidential information about deliberations he was not a part of, second guessing the outcome of those deliberations (at least privately), and displaying a bias towards convictions.
I completely agree. Fielding promises there is more to come; I look forward to his next post.
Anyone interested in international criminal law will definitely want to check out Beyond the Hague.
UPDATE: My friend Marko Milanovic has convinced me that my previous description of Judge Harhoff’s actions as hypocritical might have been a bit overstated. But please read my response to him in the comments.