Brief Thoughts on Judge Harhoff’s Disqualification

by Kevin Jon Heller

I hate when interesting things happen while I’m sleeping. As I predicted, and as Marko Milanovic and Dov Jacobs have already well discussed, Judge Harhoff has been disqualified from the Seselj case as a result of the “private letter” he sent to 56 of his friends and acquaintances. Here is the key paragraph from the majority decision:

13. By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff”s statement that he is confronted by a professional and moral dilemrna, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal. In the circumstances, the Majority considers that the Letter, when read as a whole, rebuts the presumption of impartiality.

Not surprisingly, I think this is the correct outcome. I agree with Marko that “the decision does seem to be based on a rather cursory and acontextual assessement of the Harhoff letter.” But I doubt that’s an accident — my guess is that Judge Harhoff’s fellow judges did not want to embarrass him any more than was necessary to justify his disqualification. Differently put, I think a less cursory and less acontextual assessment would only have made Judge Harhoff look worse. In my view, Judge Harhoff’s evidence-free allegation that Judge Meron coerced his fellow judges into acquitting high-ranking military commanders because of his loyalty to Israel and the US demonstrates far greater actual bias in favour of conviction than his (also absurd) comment that the ICTY’s “set practice” until recently was to convict such commanders.

I disagree with Marko, however, that “to the extent that Judge Harhoff had any difficulties in applying the current jurisprudence of the Tribunal (assuming that the jurisprudence he takes issue with would actually be central to the Seselj case), one assumes that any errors of law he made could be corrected on appeal.” True enough — but I don’t see how it’s relevant to whether Judge Harhoff should have been disqualified. A judge who wrongly decided a case because of a bribe could have his error corrected on appeal, as well, but I don’t think we would want him sitting on the case in the first place. Moreover, given that defendants have a right not to remain in detention any longer than necessary, I don’t see how it is sufficient to say that the Appeals Chamber could always reverse a wrongful conviction on appeal.

Finally, I think it’s very disappointing that the decision was not unanimous. Judge Liu was obviously well within his rights to dissent, but I find the dissent very unpersuasive. I’m particularly troubled by the following statements:

7. Such an interpretation fails to take into account, or at least acknowledge, the consideration that the Judges of the Tribunal are professional, experienced judges and that they may be relied upon to bring an impartial and unprejudiced mind to the evidence and issues arising in the case before them.

8. In my view, an evaluation of the relevant circumstances in the present case is crucial to a proper interpretation of the Letter and its contents. Such circumstances include, for example, the high eligibility standard for Judges of the Tribunal as embodied in Article 13 of the Statute, the oath taken by judges to exercise their powers “honorably, faithfully, impartially and conscientiously”, and a judge’s professional experience.

9. In the instant case, the Majority at no point mentions or indicates that it took into account Judge Harhoff’s experience as a Judge of the Tribunal and a professor of law.

Judge Liu’s argument basically reduces to the idea that no one qualified to be a judge at the ICTY, especially a law professor, could ever be sufficiently biased to warrant disqualification. I have great respect for international judges, but that is not an acceptable approach to disqualification. A light thumb on the unbiased side of the scale because of a judge’s training and oath is one thing; relying on that training and oath to ignore the most inappropriate and tendentious public comments ever made by an ICTY judge is quite another. If Judge Harhoff’s letter was not enough to question his impartiality, what would be enough?

http://opiniojuris.org/2013/08/29/brief-thoughts-judge-harhoffs-disqualification/

5 Responses

  1. The whole story is incredible…both Judges Burton Hall and Moloto have sat with Judge Harhoff in cases before the ICTY, convicting police/military commanders – doesn’t this appear strange? Couldn’t have they chosen judges  who never deliberated with Judge Harhoff and therefore might have grudges or preconceptions about him?

  2. Or maybe hypocrites are just trying to “kill” one really impartial and unprejudiced whistleblower.

  3. Response…
    Kevin, your takedown of Judge Liu’s dissent is extremely unfair. You have omitted what I think is the most important passage in his dissent ” [the Majority] did not take into account that the Letter is of a highly informal nature directed at the audience of his close friends and associates.Taking into account this context, I am not convinced that Judge Harhoff’s failure to refer to “an evaluation of the evidence in each individual case, creates the appearance that he is reluctant to apply the Tribunal’s law and rules…”I agree that the requirement that a judge rely on evident is so self-evident that the failure to mention it in an informal message to pals means nothing at all. In the same vein, I would add that the “set practice” referred to by Harhoff is well-established in Article 7.3 of the Statute. Harhoff simply failed to use the “prevent and punish” language more formally employed when referring to superior responsibility. I imagine most people use shorthand when addressing like-minded friends that they would alter if they thought it was going into a formal legal document.
     

  4. Charles,

    I disagree completely. First, a letter to 56 people is not directed at “close friends and associates”; it is a quasi-public statement. Moreover, when you are a judge at an international tribunal, you don’t get to make “informal” comments that create the appearance of bias without consequences. Second, as the majority rightly found, Judge Harhoff was not referring simply to the basic idea of command responsibility when he was talking about “set practice”; he was describing convicting high-ranking commanders via 7.3 as the set practice of the Tribunal. (Hence his dismay at the acquittals.) Third, as I said in the post, the “set practice” comment was the least of the letter’s problems. Judge Harhoff’s accusations re: Meron coercing acquittals are far more probative of his lack of impartiality. (I could have also mentioned Judge Harhoff’s appalling claim that the burden of proof lies with military commanders to prove that they did not know their subordinates were committing crimes.)

  5. My take here:  http://www.liebercode.org/2013/09/a-partial-defense-of-judge-harhoff.html
     
     

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