The Real Judge Meron Scandal at the ICTY

I have refrained from weighing in on the recent scandal at the ICTY concerning a letter written by the Danish judge, Frederik Harhoff, that accuses the President of the Tribunal, Judge Theodor Meron, of pressuring his fellow judges into acquitting high-profile defendants such as Gotovina and Perisic. I have done so not because the scandal isn’t worth mentioning, but because I have little to add to what Dov Jacobs has written in two excellent posts — here and here — at Spreading the Jam. Like Dov, I think the scandal is vastly overblown, revealing little more than business as usual at the international tribunals. In fact, if I have any disagreement with Dov at all, it’s concerning the propriety of Judge Harhoff writing the letter in the first place. Dov says one can “question the propriety” of the Judge writing the letter and sending it to 56 of his friends and colleagues. I’d go much further than that — I think it was deeply unethical, and far more scandalous than any of the allegations in the letter, for Judge Harhoff to reveal confidential discussions between the judges. Can you imagine if a legal officer or intern had written the letter? He or she would have been fired immediately. The fact that Judge Harhoff still has a job indicates the need, as Michael Bohlander has pointed out, for a binding code of judicial ethics at all international criminal criminal tribunals, not just at the ICC.

That said, the brouhaha about Judge Harhoff’s letter did lead me to a WikiLeaks cable dated 27 July 2003 that recounts a discussion between Judge Meron, then also the President of the ICTY, and an unnamed American ambassador — presumably to the UN — about Carla Del Ponte, who was nearing the end of her term as Prosecutor at the time. Judge Meron’s statements, as summarized by the cable, are truly shocking. Here is the summary:

President Theodor Meron of the International Criminal Tribunal for the former Yugoslavia (ICTY) met with the Ambassador on July 16 to convey his serious concerns about the performance of Chief Prosecutor Carla Del Ponte and the risk the renewal of her tenure would pose to the completion strategy. Meron urged the USG to oppose renewal and expressed reservations about a one year extension of her mandate. Meron further advised that the UN secretariat had contacted his chief of staff on July 15 to “float” the idea that no action be taken by the Security Council in September and that Del Ponte term simply be allowed to lapse. Under such an approach, which Meron found promising, the Deputy Prosecutors of the ICTY and ICTR would serve as “acting” prosecutors of their respective offices until replacements were named.

And here are a couple of the most disturbing snippets:

On penal policy, Meron noted that the OTP brings prosecutions that are too broad in scope which result in unnecessarily lengthy and resource consuming trials. Instead of focusing on a few significant charges that are supported by strong evidence, the OTP brings indictments with too many charges of which many are ultimately not readily provable. He added that the presiding judge of a trial chamber had complained to him this week that in a small case with a mid-level defendant, the OTP had informed the chamber that it planned to present 80 to 90 witnesses. This request prompted the defense to request a similar number of witnesses, guaranteeing a long and complex trial. “This is no way to run a court,” Meron observed.

Meron expressed to the Ambassador his support for the splitting of the prosecutorial functions noting that the ICTR deserves a “first class prosecutor.” He also noted that concerns about divergent penal policies arising from such a split were unwarranted because the appeals chamber would continue to preside over both tribunals, thereby ensuring a consistency in approach and jurisprudence.

Needless to say — I hope! — it is completely unacceptable for a judge to encourage a state to not re-appoint the Prosecutor of his tribunal because he disagrees with the way she has exercised her prosecutorial discretion or because he doesn’t believe she is a “first class prosecutor.”. Art. 16(2) of the ICTY Statute provides that “[t]he Prosecutor shall act independently as a separate organ of the International Tribunal.” Judge Meron’s secret meeting with the US Ambassador was inconsistent with any notion of the OTP’s independence. Indeed, it was a frontal assault on it.

The New York Times has reported that “a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the election for tribunal president this fall.” It will be a shame if that rebellion is based on, or furthered by, the unsubstantiated allegations in the Harhoff letter. Nevertheless, given Judge Meron’s evident willingness to undermine the Prosecutor over disagreements concerning matters committed solely to the Prosecutor’s discretion, it’s hard not to take the side of the rebels.