Welcome to Beyond the Hague — and a Great Catch on Judge Harhoff

by Kevin Jon Heller

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.

http://opiniojuris.org/2013/08/12/welcome-to-beyond-the-hague-and-a-great-catch-on-judge-harhoff/

13 Responses

  1. Come now Kevin, I think this a bit too harsh on Harhoff (not that I want to get back into that whole letter mess, or defend him for it), and is certainly not ‘hypocrisy’ on his part. Correct me if I am wrong, but the specific direction requirement was NOT AN ISSUE in the Stanisic and Zupljanin case. The block quote in para. 107 is there just as a general statement of the elements of aiding and abetting liability, followed by a single paragraph elaborating on the elements and not dealing with specific direction in any way.
    The quote is moreover from the Blagojevic and Jokic appeals judgment (Perisic being cited only as ‘see also’ in the footnote), which itself cites the Simic judgment, which cites the Blaskic judgment, and this whole chain of citations goes back to Tadic where specific direction was first mentioned. But again, in most if not all of these cases specific direction WAS NOT A LIVE ISSUE, discussed at any length and applied to the facts, as was the case so problematically in Perisic. Rather, it’s just an example of the propagation of a concept through blind, chain copy/paste.
    In other words, it’s not as if in S&Z Harhoff applied the concept of specific direction and then disavowed it. Had he done that, he would indeed have been a hypocrite. The concept was entirely irrelevant to that case, and was just part of a quote on the general elements of aiding and abetting. Bearing in mind how these judgments are drafted – primarily by the staff lawyers with some direction from the judges – and that the S&Z judgment is in three volumes totalling some 3,000 paragraphs, I am pretty sure that Harhoff wasn’t endorsing the specific direction standard by not dissenting from one flimsy copy/pasted paragraph. I’m obviously equally happy to stand corrected if specific direction played any meaningful role on the facts in S&Z (which I confess I have not read in full).

  2. For what it’s worth, I pointed out Harfoff’s hypocrisy and his holding in Stanisic and Simatovic on specific direction in a June 14 comment to the EJIL talk forum:  http://www.ejiltalk.org/danish-judge-blasts-icty-president/#comments
    And Marko Milanovic is, once again, completely incorrect.  Harhoff’s reliance on the specific direction standard in Stanisic and Simatovic was not dicta, as Milanovic suggests, but was the very basis (i.e. the holding) of the Trial Chamber’s (and Harhoff’s) decision to reject the Prosecution’s charges of aiding and abetting against Stanisic.  

  3. Okay, so there is one more paragraph in the S&Z judgment (para. 786), indeed one sentence, which mentions specific direction while also saying that there was no knowledge/i.e. mens rea for aiding and abetting. I stand corrected. But again, my basic point I think remains sound – I am very uncomfortable with levying charges of hypocrisy against a judge because of some inconsistency with a relatively trivial part of another case, particularly bearing in mind how these judgments tend to get drafted. S&Z was simply not comparable to Perisic. This personalization of the whole thing (which Harhoff of course significantly contributed to) is simply not helpful in any way.

  4. Marko,

    I completely see your point, and normally I would not read too much into a quote from the Appeals Chamber in a trial Judgment. But don’t we have to hold Judge Harhoff to a higher standard, given that he has flatly accused Judge Meron of badgering his colleagues — at the insistence of Israel and the US — into accepting the specific-direction requirement? If you were going to make that allegation, wouldn’t you make sure that you didn’t join a judgment that even mentioned specific direction approvingly — especially one issued just a couple of months before you wrote your letter?

    By the way, substantively, I think the fact that Perisic was simply part of string cite actually makes Judge Harhoff look worse. His whole point (such as it was) was that the Appeals Chamber invented the specific-direction requirement in Perisic to ensure that high-ranking military officers were not held accountable for their crimes. The string cite obviously puts the lie to that claim.

  5. Many thanks, Kevin, for this great introduction to the ICL blogosphere! Regarding the S&Z trial judgement, it is true that specific direction did not play a major role, since it was included in the indictment as an alternative mode of liability to be applied if the Prosecution would fail to establish a Joint Criminal Enterprise.  However, the specific direction requirement was applied at para. 786 to acquit Stanisic of aiding and abetting the crime of extermination:

    “786. The Trial Chamber finds that, despite the involvement of the police in the commission of extermination in some instances, there is no evidence that Stanisic’s acts or omissions were specifically directed to assist, encourage, or lend moral support to the perpetration of extermination nor was he aware of the perpetrators intent to commit the crime. Therefore, the Trial Chamber finds that Stanisic is not criminally responsible for aiding and abetting the crime of extermination.”

    Thanks for raising this point Luka, and alerting me to your June 14 comment, I’ve now updated my post.

    http://beyondthehague.com/2013/08/09/judge-harhoff-specific-direction-and-the-perisic-acquittal/

  6. Kevin,
    I certainly agree that Judge Harhoff should have done his due diligence, as it were, and indeed the letter he wrote did not show much appreciation for some of the relevant legal issues. He certainly showed a lack of judgment in writing that letter (regardless of its substance), and this compounds it. But just as I think we should give Meron the benefit of the doubt, so should we do with Harhoff. It’s a miserable episode all around.
    As for the string-cite, I don’t dispute that the words ‘specifically directed’ were mentioned in quite a few ICTY cases, by copy/pasting the Tadic formula – but we also shouldn’t overstate this by saying that the standard was somehow clear, black-letter law. Most of these cases didn’t really resemble Perisic (or Charles Taylor for that matter – we’ll see what the SCSL Appeals Chamber will do with that in light of the whole specific direction business).

  7. Thank you Alex.  Much appreciated.

  8. Marko,

    As we’ve discussed, I support the principle of specific direction, not its application by the ICTY. (Definitely not in S&S; I’m on the fence in Perisic.) I think it would be absurd — literally — for the SCSL to conclude that Taylor did not specifically direct his assistance to the RUF and AFRC’s crimes.

  9. I’ve always thought the real Meron scandal was the advisory opinions he wrote while he was an Israeli official. 
     
    In one of those, he admitted as a preliminary matter in the cover letter that establishing settlements in the occupied territories contravened the 4th Geneva Convention. But he went on to provide advice on the methods the regime could employ to disguise the settlements as military camps and other methods to best accomplish that task in the attached legal analysis.
     
    He also wrote memos that were used in High Court of Justice cases, that undermined the Jordanian constitutional protections contained in Article 9(1) against exile. He did that in order to facilitate the Israeli government’s policy of deporting Palestinian inhabitants of the occupied territories. See for example, the rebuttal affidavit Aziz Shehadeh filed with the Supreme Court starting in page 71 of 95 of Martha Roadstrum Moffett, “Perpetual Emergency: A Legal Analysis Of Israel’s Use Of The British Defence (Emergency) Regulations, 1945, In The Occupied Territories“.

  10. I have also thought that the real Meron scandal might also include the decision and circumstances of Gotovina appeals decision (which, in the words of one of the distinguished dissenters, „contradicts any sense of justice“ and which, by refusing the JCE, in effect protects the US representatives who allegedly participated in the preparation of the Operation Storm).

  11. Response…
    With respect to Kevin’s comments about Charles Taylor, I am not clear what the distinction between Taylor’s intent and Perisic’s. There was absolutely no evidence in the Taylor case that Taylor directed, or wanted, the commission of crimes in Sierra Leone. Neither Taylor not Perisic specifically intended the crimes committed. But both wanted a specific political outcome in neighboring territory and provided critical assistance to promote that outcome; both were aware that the assistance resulted in the commission of crimes; and neither took any action to prevent or punish the crimes. In other words, both cared about the outcome and neither cared about the means to get there. If they could have gotten the desired political outcome without the commission of crimes, I am certain that would have been fine too.

  12. Friends,
     
    A little forewarning of a two year project that I will complete next week and (with Kevin’s blessing), I will post a summary on Opinio Juris sometime thereafter. The research analyses all incidents of aiding and abetting in the history of international criminal law, placing them into a dataset I will make publicly available. A short sneak preview, since it relates to this discussion:
     

    Of the 350+ incidents we have coded, 32% mention “specific direction” in passing by citing the language in Tadić.
    Of these incidents, only one pre-dates the Tadić Judgment. This reference is also very casual, and its legal importance is unclear in the relevant judgment;
    Of the 350+ incidents we have coded, “specific direction” is applied as a substantive test to the facts of a case in less than 2% of incidents.
    In over 98% of incidents, “specific direction” is either not mentioned at all, or only mentioned in a single sentence without elaboration;
    To the best of our knowledge, there are no acquittals based on “specific direction” prior to Perišić before any court, national or international.

     
    I am not interested to engage with the Harhoff/Meron discussions, which I find unfortunate on all sides, and a distraction from these important legal issues. I just thought this empirical work might help these discussions as they evolve.
     
    More soon.
     
    Best,
     
    James
     
     
     

  13. Response…
    Dear James,
    Your research thus far is very interesting, and I must confess that I agree that it is much more useful to discuss whether the “specific direction” aspect of aiding and abetting is part of customary international law than which individuals will or will not escape conviction based on this principle.
    Regards, Charles
     

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