Judge Harhoff Digs Himself Deeper

by Kevin Jon Heller

The two-part series I mentioned in my previous post seems designed to rehabilitate Judge Harhoff’s image in the international-law community. Unfortunately, the articles, which draw heavily on an interview with the judge himself, simply underscore why it was necessary for the ICTY to remove him from the Seselj case. To begin with, consider what the judge says in the second article about how his infamous email, sent to 56 of his closest friends, was leaked to the press. One might speculate that one of those 56 friends might have leaked it. But not Judge Harhoff. He suspects the shadowy hand of foreign intelligence services (emphasis added):

For Mr. Harhoff, however, the rub was elsewhere. He asks: Who would have had an interest in leaking the email – and why leak it to a tabloid newspaper like B.T.?

”None of 56 recipients reads a newspaper like B.T. If one of them wanted to leak my email they would most likely have preferred more reputable newspapers such as Politiken or Information,” Mr. Harhoff inferred, “and at least they would have consulted me first.”

All 56 recipients have since given him personal guarantees they didn’t leak it. Mr. Harhoff also asked each of them whether they had forwarded his message to someone else, but not everyone responded to this question. So he believes that in all likelihood the mail was passed on to a third party unknown to him.

Who could it be?

”I am sure that all judges are having their email correspondence monitored,” Mr. Harhoff said (a suspicion shared by several other judges, as far as Information has been able to ascertain).

”It might make sense to assume that if a foreign intelligence service were able to read my email this would be a smart way to silence me by making it public”, he said.

Yes, foreign intelligence services — presumably those of Israel and the US, whom Judge Harhoff believes put pressure on President Meron to adopt the specific-direction requirement — are so worried about one judge at a tribunal with limited jurisdiction that they read his email and conspire to silence him. Makes perfect sense.

Judge Harhoff also has interesting things to say about his President Meron accusation:

During the interview, Mr. Harhoff seemed to be of two minds. On the one hand, he conceded that his contention of Mr. Meron’s possible motives was ”pure  speculation”. On the other hand, he left open the possibility that a likely explanation for Mr. Meron’s radical departure from a “more or less set practice” could be that he had somehow been influenced by outside military interests.

”In military establishments, some people might have been uncomfortable having to accept the evolving liberal jurisprudence at ICTY, since this could set a precedent for the International Criminal Court, ICC. And in the future that could make it very hard to be a general,” Mr. Harhoff said.

[snip]

In the interview Mr. Harhoff mused: ”Why was it so important for Meron to ensure the acquittal of two Croatian officers who were accused of indiscriminate shelling of towns and civilian centers?”

He wondered: ”It has been pointed out by many others that the United States strongly supported the Croats with arms and intelligence. Gotovina was only able to defeat the Serbs militarily because of the American support. Would that in any way implicate the US Army? Probably not. But we don’t know what the accused might have revealed, if he had been convicted.”

So Judge Harhoff admits that it is “pure speculation” that President Meron manipulated his fellow judges into acquitting Perisic, Stanisic, and Simatovic.(And apparently Gotovina.) But he still believes — and, worse, says to a journalist after the email scandal — that President Meron is an American and Israeli puppet.

And we’re supposed to believe that the ICTY shouldn’t have removed Judge Harhoff from the Seselj case?

http://opiniojuris.org/2013/12/06/judge-harhoff-digs-deeper/

11 Responses

  1. “Yes, foreign intelligence services — presumably those of Israel and the US, whom Judge Harhoff believes put pressure on President Meron to adopt the specific-direction requirement — are so worried about one judge at a tribunal with limited jurisdiction that they read his email and conspire to silence him. Makes perfect sense.”
    Are you suggesting here that because the ICTY has limited jurisdiction, focusing over one particular conflict, other states that frequently engage in armed conflicts have no reasons to be worried about the jurisprudential developments in this Tribunal?! Because if that’s the case, this has got to be the worst sarcasm-infused argument that I have seen in a while. The effect that the ICTY jurisprudence has on the development of international criminal law, as a whole, and consequently on the conduct of states in times of war, is NOT AT ALL dependent on the Tribunal’s otherwise limited jurisdiction. Modern international courts and tribunals still rely on Nuremberg-era case law when shaping the content of certain legal constructs and this is irrespective of the fact that the Allies’ military tribunals had a very “limited jurisdiction”. The ICC, in turn, has relied numerous times on the ICTY jurisprudence when articulating its applicable law, irrespective of the RS primacy. So yes, I see a lot of reason why certain more “liberal” interpretations of international criminal law, which have been developed in the Yugoslav Tribunal, will bother other states that are thousands of miles away from the former Yugoslavia.
    I also wouldn’t be so quick to dismiss as nonsense Judge Harhoff’s speculations that the US is spying on the Tribunal’s work. Think of the recently leaked cable from the US embassy in the Hague, regarding Del Ponte’s incognito visits to it! It was obviously serious enough to make the ICTY President authorize a special panel to investigate this matter. Let’s be blunt about it: right about now, news about US agencies spying on allies, UN officials, international judges or other persons you would normally not expect to be spied upon, should not be offhand treated as rubbish.
    Lastly, I have deep respect about Judge Meron’s work in the ICTY. I fail to see, however, why you point at Judge Harhoff’s conflict with him (and speculations shared in private correspondence) as a reason to disqualify him from Seselj’s trial. If he was biased towards convicting the accused, which is what the majority found, that’s one thing. His opinions of the Tribunal’s President are a totally different matter and, contrary to what you are suggesting, are no reason to see him as someone who is not qualified to sit in Seselj’s case.

  2. Harhoff’s “opinions” about Meron include the idea that Meron has personally engineered the acquittal of Gotovina, Perisic, Stanisic, and Simatovic. And he has made clear that he has a “professional dilemma” concerning his willingness to follow the requirement that Meron supposedly rammed down the throats of the other judges. If that isn’t grounds for disqualification, I don’t know what is.

  3. And, of course, Harhoff’s “opinions” also include the belief that Meron is a puppet of Israel and the US. If you are judge at a tribunal who believes acquittals reflect corrupt judges and foreign influence, you cannot be perceived as impartial.

  4. Having a “professional dilemma” to follow the specific direction requirement in A&A, or for that matter, to follow any formulation of the Tribunal’s law is hardly a reason to disqualify a judge for lack of impartiality. Certainly not if we follow the standards established under Rule 15 RPE. Judge Schomburg did not stop writing dissenting opinions, at every opportunity he received, on the application of the JCE theory, calling it also a “waste of time” in his academic work. Judges Pal and Roling from the IMTFE also wrote dissenting opinions which were very critical of the work of the Tokyo Tribunal in its entirety, the former even describing it as a “victors’ justice” court. So yes, if Judge Harhoff has a problem with following the Gotovina jurisprudential development on A&A liability, he is entitled to dissent in an official judgment and explain with formal, legal arguments what the problem is, rather than to be disqualified for informal views he expressed in a private correspondence with his friends. In this sense, I agree with Judge Liu’s conclusions that while Judge Harhoff’s language in the said letter was unbefitting for a judge, it is by no means indicative of bias towards Seselj. 

    Mind you, the reason why Judge Harhoff was disqualified has nothing to do with his speculations and accusations against Judge Meron. It was his unsubstantiated statement that it is “more or less set practice” in the ICTY to convict commanders for crimes committed by their subordinates that led to the conclusion that he is biased towards convictions.

    As for you statement that “if you are judge at a tribunal who believes acquittals reflect corrupt judges and foreign influence, you cannot be perceived as impartial” – yes, if that were the case with Judge Harhoff, he should be disqualified. You are misreading his general argument, however, which is not that Gotovina was acquitted because the US/Israel wanted this. Rather, it is about what necessitated the shift in the entire body of law on A&A liability, irrespective of whether we are talking about Gotovina, or Karadzic, or any other case before the ICTY.

  5. A quick reminder to readers what Harhoff said:

    Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?  We will probably never know. But reports of the same American presiding judge’s tenacious pressure on his colleagues in the Gotovina-Perisic case makes you think he was determined to achieve an acquittal – and especially that he was lucky enough to convince the elderly Turkish judge to change his mind at the last minute. Both judgements then became majority judgements 3 -2. 

    In light of that statement, the idea that Harhoff was not claiming “that Gotovina was acquitted because the US/Israel wanted this” rings hollow.

  6. Taken out of context, you could interpret that paragraph in the manner you have chosen. Since we are quoting Judge Harhoff’s letter, however, here is what he says:
    You would think that the military establishment in leading states (such as USA and Israel) felt that the courts in practice were getting too close to the military commanders’ responsibilities. One hoped that the commanders would not be held responsible unless they had actively encouraged their subordinate forces to commit crimes. In other words: The court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed.”
     
    This is why, I think that the correct interpretation of Judge Harhoff’s letter is not that he is complaining about the said acquittals and, thus, that he is someone who is biased against the accused persons in the ICTY. Rather, his argument/speculation is that the US/Israel, thinking of the criminal liability of their own military commanders in possible future ICL proceedings, put pressure on the ICTY President to remodel the framework of certain modes of liability so that convictions become more difficult. A byproduct/side effect of doing so was that several ICTY defendants got acquitted. The global problem, however, is whether one should choose to follow the “new” jurisprudence on A&A liability – the problem which, in my reading of Judge Harhoff’s letter, he has a “personal dilemma” with.

    This is why I don’t think that Judge Harhoff was biased in the sense that he wanted Perisic, Gotovina and all the other people listed in his letter convicted i.e. in the sense that he is someone who is generally biased towards convictions of Serb or Croat defendants. I think that he has a problem with the “new” trends in the ICTY interpretation of otherwise long-established law, which he speculates are caused by pressure from the US and Israel acting in their own, personal interest. As I said, his unsubstantiated attacks against a fellow judge are, to say the least, inappropriate, but not indicative of bias towards the ICTY defendants.
     

  7. I see. Harhoff isn’t biased in favor of convictions; it’s just that he believes acquittals can be best explained as the result of foreign powers manipulating the President of the tribunal into pressuring his colleagues to acquit. Yes, indeed, no reason to believe that Harhoff would be anything but fair in determining Seselj’s guilt or innocence.

  8. Sarcasm is really not your strongest asset, Kevin. This is going nowhere. I tried my best to explain the difference between:

    A) X told the judge to acquit Charlie of murder. (and I’m pissed off because I wanted Charlie convicted)

    and

    B) X told the judge to change the law on murder, because X is afraid that the current definition we have here might result in X himself being convicted of murder in the future. (and I’m pissed of because THE LAW is manipulated for political reasons)

    If the difference between these two (and respectively their effect on deciding whether Judge Harhoff is biased towards Seselj) is still not evident to you, then I propose we stop this conversation here and call it a day. :)
    I just want to point to you, that under the “old” law on aiding and abetting (i.e. without specific direction) it would be much more easier to prosecute US officials, for say, providing military equipment to the Syrian rebels, knowing from news reports that the latter’s military strategy regularly involves the commission of war crimes.  

  9. As I have explained at length, and as the AC explains in Perisic, there is no “old” law of aiding and abetting. The specific-direction requirement was articulated in Tadic, the first AC judgment, and has been reaffirmed in every AC judgment but one since. The requirement developed bite for the first time in Perisic because, as Judge Moloto explained in his dissent at trial (another inconvenient fact for Harhoff), Perisic was the first case in which there was significant question whether it was satisfied.

    I completely understand, by the way, your distinction between A and B. But I reject the idea that Harhoff is endorsing B, for the reasons I’ve explained. There is also the possibility of C, which you ignore: X told the judge to acquit Charlie of murder because it doesn’t like the law of murder as it would be applied in Charlie’s case.

    All that said, Harhoff would have been rightly disqualified even under B. A judge who explains acquittals as the result of the shadowy influence of foreign governments using the President of a tribunal to “change” jurisprudence in its favor — without, as he basically admits, any evidence whatsoever — cannot reasonably be viewed as impartial. Whether he thinks he is “protecting” the law from that shadowy influence is irrelevant.

  10. Thank you for this, thoughtful response!

    I’m ready to agree with you that this distinction between “old” and “new” jurisprudence on A&A is a misunderstanding. I also carefully studied the Perisic AJ and I saw the digest that the judges did on the tribunal’s jurisprudence which contained this element of “specific direction”. But it is just curious to me that in the one case where the ICTY judges were first confronted with explaining this particular notion (Sljivancanin, if memory serves me right), they explicitly stated that there is no such requirement. It just didn’t really look like a jurisprudential “hiccup” to me. Before that, this element was indeed listed in Tadic and a score of other judgements but, as ridiculous as it may sound, it just stood there without much thought being spared on what exactly it means. It was due to the peculiar fact of the Perisic case, him being so geographically removed from the crimes area, that the significance of this element came to the forefront and it was explicitly explained for the first time by the judges. As I said, the only other time in which they delved into it before that was in Sljivancanin, and there they said that it is not part of the actus reus of A&A. Actually, I’m still trying to wrap my mind around the qualification of this element as part of the actus reus requirement, rather than as a mens rea element. But that’s another issue and in fact this whole debate about the substantive law on A&A liability is not why I responded to your post here.

    Yes, there is, indeed, option C which you mention and I ignored, but it doesn’t really strike me as a logical one. As for your comment on whether option B still suggests that Judge Harhoff is biased towards convicting – I guess we’ll just have to agree to disagree here. :)

    Cheers and have a great evening!

  11.  
    Judge Harhoff is the 8th wunder of the world
    He sent his letter to 56 of his closest friends. Obviously he has more than 56 clostest friends, which by any measure is a number for the GUINNESS WORLD RECORDS .
    So a reasonable Trier of Facts, a term the ICTY judges love to use, can come to only this conclusions.
    When you think, you have 56 close friends, you must be a pretty darn fool.
    This possibility in respect to Harhoff you certainly can disregard.
    And that Harhoff thought none of his “closest” friends would leak his letter to the public, you can disregard as well. The contrary is to assume.
    So there remains only one question.
    Is Harhoff tired or afraid of participating in the culmination (judgement) of a trial, which was a disaster from the beginning till the end, and the judgement had to show this?
    Or did Harhoff on order what he did, in order to delay? or to axe the trial?
    Recently I read, Seselj might have cancer, so there is a way out for the Tribunal’s dilemma without a disastrous judgement.
    Anything Harhoff writes to justify his letter is nothing more than a smokescreen.

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