Monthly Archives: September 2013

Taylor Judgment: a "victory for justice"?

Following the confirmation of the 50 year sentence of Charles Taylor, there is a tone of celebration from a number of human rights organisations. One expression that has struck me as problematic is that of this verdict being a “victory for justice”, as seen for example in this tweet by Human Rights Watch executive director:

On a certain level, I of course understand what he means. This verdict is seen as vindication for some of the victims of the Sierra Leone conflict and in this sense constitutes “justice”. However, I think that the expression is disturbing in what it says on the state of mind of those who use it.

Indeed, technically, if you trust the legal system, a conviction is no more a “victory for justice” than an acquittal would be. It is the system that must be seen as just, irrespective of the particular outcome in a given case. If we do not accept that acquittals are an option, then there is no point in pretending to want a system of international criminal justice, with a strong protection of the rights of the defense. We might as well reintroduce summary executions, which, I’m sure would satisfy some victims just as much.

On the substance, I’m not entirely sure how much of a “victory for justice” it is, when you see the systematic violations of the rights of the defense in international criminal proceedings. The acts that are being prosecuted are the most heinous crimes that affect the “conscience of humanity”, and the highest standards of evidence should be imposed, rather than the lowest ones, as is sometimes the case.

Attachment to these high standards of justice in the respect of the rights of the defense should be the first concern of all people involved in this field, because it is at the heart of the international criminal justice project. Without a fair trial, there cannot be, on the long run, any victory for justice.

First thoughts on the Taylor Appeal Judgment: Sentence upheld and Perisic blasted

As I logged on to the livestream of the SCSL this morning at 10.30, there was a song playing on a loop with the most extraordinary lyrics: “i just can’t stand to see you go, i don’t understand where we went wrong” (it’s a song by Bonnie James called Happy Home). For a second I thought this was a subliminal way for the Court to announce an acquittal… But it turned out not to be the case, as the Appeals Chamber of the Special Court for Sierra Leone has confirmed the 50 year sentence against Charles Taylor. Having followed the reading out of the summary, there is mostly nothing very surprising about the Appeals Judgment. They confirm that crimes against the civilian population were committed by the RUF-AFRC and that Taylor had some role in the events. There are a few points that deserve some comments in my view, until we actually get the judgement.First of all, the AC discussed the question of evidence. It essentially approved of the Trial Chamber’s approach to evidence, specifically rejecting the claim from the defense that uncorroborated hearsay evidence as a sole basis for conviction should not be allowed. I find that quite appalling frankly, but thus is the nature of the international criminal procedure.

Of course, everybody was waiting for the discussion on aiding and abetting after the Perisic appeal judgement at the ICTY on the question of “specific direction”. As discussed by Manuel Ventura here, there could have been an impact on the Taylor appeal judgement. It turns out that there wasn’t because the Appeals Chamber upheld the Trial Judgment on the fact that you need a “substantial contribution” to the crime for the actus reus of aiding and abetting to be constituted, and that knowledge is sufficient mens rea. The Appeals Chamber seems to have gone out of its way to not just ignore Perisic, but actually blast it. Continue reading

Guest Post: The Use of Chemical Weapons is not a Crime against Humanity

By Catherine Harwood, Grotius Centre for International Legal Studies

The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressedby the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelledchemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventionaland customaryinternational law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?
Many voices have called on the Security Council to refer Syria to the ICC.  Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet.  In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.

Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theories

There doesn’t seem to be a day that something new does not arise in the Harhoff saga. Today, the Presiding Judge of the Chamber, Judge Antonetti, has decided to make public the report that he wrote in the context of the disqualification procedure. The decision, in French, explains the recent behind this, and annexes the report itself.I’ll start with the only thing I agree with in the decision: Rule 15bis does not apply to the current situation, as I explained in my previous post.

More importantly, this decision in my view confirms what I mentioned yesterday in relation to there clearly being a problem at the tribunal between the judges, as Judge Antonetti obviously comes out in favor of Judge Harhoff. I also don’t know what Judge Antonetti is suggesting when he says in his decision that both Judges Moloto and Hall had sat on benches with Harhoff. Why is that relevant? Is Judge Antonetti suggesting that they were biased against Judge Harhoff? if so, then he should be more explicit. If not, then he should not have made this comment at all.
Both the decision and the report are interesting in showing the state of mind of Judge Antonetti, which echoes what was in the requests for clarification: Judge Harhoff did nothing wrong. Both documents explicitly refuse to discuss the content of the letter, claiming that it is private correspondence that is protected under international human rights. I find that a little unconvincing. The content of the letter and what it might illustrate is one thing, its public or private nature is another. Can Judge Antonetti really claim that he would ignore the content of a private email by which a Judge would be telling friends that he had received a bribe to convict someone? it doesn’t make sense.
In any case, Judge Antonetti puts forward a conspiracy theory of his own by focusing on the source of the leak of the letter. The decision says:

Il n’est pas à exclure qu’une entreprise de déstabilisation ait été ourdie par un tiers ou une entité disposant de moyens importants pour aboutir à cet effet. Seule une enquête sérieuse pourra permettre l’identification de !’auteur de la transmission des réflexions personnelles du Juge Harhoff au journal danois et de connaître les motivations réelles de cette transmission.

The Report goes into more detail:

En l’état des hypothèses à envisager, soit il s’agit d’un des destinataires de la correspondance, soit d’une autre personne ou entité qui aurait pénétré l’ordinateur ou le réseau de communications du Juge Harhoff pour transmettre à ce journal ledit document. Le résultat a été évident : il y a eu la volonté manifeste de déstabiliser à titre principal notre Tribunal et de porter atteinte à la réputation du Juge Meron et à titre secondaire d’attenter à l’honneur du Juge Harhoff sur le terrain de l’impartialité et à titre accessoire, de porter atteinte le cas échéant à l’ Accusé Vojislav Seselj lui-même pour le cas où il y aurait in fine un changement de Juge

In a nutshell, for those who don’t read French, according to Judge Antonetti, the person who leaked the letter was trying to destablize the tribunal, affect the reputation of Judges Meron and Harhoff and cause prejudice to Seselj. I find the reasoning quite extraordinary. For one, as I said before, the content of the letter is what is relevant, not how it was made public. Continue reading

Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.

This is a lot of information to digest, but just a couple of preliminary thoughts. I don’t have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I’m not sure this will go anywhere, but we will have to see.
  • The Order from Judge Agius (acting President of the Tribunal)
The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because “in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis”, without much further explanation.
The relevant parts of this rule are the following:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the  proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G). 

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President  shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

I’m not entirely convinced by the application of this rule to the current situation. For one, it’s obviously not applicable. As Judge Agius acknowledges, this cannot be “strictly speaking be described as part-heard”. This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.

This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!

Also, I’m not sure that the combination of Rule 15 and Rule 15bis was really thought through by the Vice-President. Indeed, the result of the order, is that, based on the fact that Rule 15 does not say how to proceed in the case, leads the Judge to ignore the one clear thing that Rule 15 does provide for: the assignment of a new judge! This is clear and unambiguous language of the Rule, and comes with no conditions, such as consent of the accused or report of the other judges. This is additional support for the idea that Rule 15bis is not meant to apply “mutatis mutandis” to disqualification situations. This is the kind of “creative” reading of the Rules that has plagued the practice of the tribunals since the outset. This is all the more disturbing given that the Judges themselves wrote the RPE. It is not acceptable that they then ignore them!

Finally, should 15bis indeed be applied, it put forward a strange concept of consent. Basically, Seselj should consent to the proceedings continuing with a new judge… except if his consent is ignored! I’m not entirely sure how that amounts to consent…

So now, we have to wait for the opinion of the remaining judges on the bench and Seselj’s own decision. I’m not sure there will be more suspense on the latter…

  • The requests for clarification from Judges Antonetti, Lattanzi and Harhoff
Both requests for clarification rely on the same basis: the fact that the disqualification decision not does mention, or seem to take into account, the Report done by the Presiding Judge of the Chamber (Antonetti) and the memorandum submitted by Judge Harhoff in his own defense. It is true that the panel decision does not mention them, so it is not necessarily an unreasonable request for clarification.

It does denote, at least incidentally, a rift between the judges at the Court, which might be indicative that the low morale among the staff actually reaches up to the judges… Indeed, I don’t really see the point of Judge Antonetti and Lattanzi involvement, other than to make a gesture of support for Judge Harhoff. It could be that they just want to “save” their case, but in that case, it would show a level of short-sightedness because there is no way that a Judgment issued in the Seselj case now with Judge Harhoff’s name on it could be seen as legitimate.

It is also interesting to note that Judge Harhoff seems to want to defend himself on the substance of his allegations! He therefore claims that

My private letter of 6 June 2013 was sparked by my dilemma in the discovery of being a Judge in a international Court which – possibly – had been influenced by external sources. My letter does not suggest that generals and high ranking military officers must be convicted irrespective of the evidence and my personal comments in the letter are not in any way related to the Accused who is not a military commander and has not been charged with having directed or commanded combatants during the armed conflict

First, I would disagree as to what the letter “suggests”. It’s been amply discussed since June what kind of errors, approximations and shortcuts that it contains in describing the applicable law of the ICTY. A little provocatively, one could say that this would warrant his removal from the bench, not for partiality, but for mere incompetence. What is more, Judge Harhoff is clearly trying to minimize that now.  His letter, while initially speaking of military leaders, concludes with general thoughts on any leader.

But what I mostly find incredible is that Judge Harhoff would now reiterate his allegation of external influence. As Kevin John Heller suggested recently, this is probably the more egregious and unprofessional comment in the letter, and I don’t understand why he would restate it here… in his own defense…

Judge Harhoff concludes his request by saying that “The decision to disqualify me from the Seselj case has a direct impact on my personal and professional commitments ot the Tribunal as a Judge”. While I have some sympathy for what Judge Harhoff must be going through right now, it is his unprofessional letter that had an impact on his career, not the disqualification decision. Irrespective of what one thinks of the disqualification decision (see some expressions of doubts from Marko Milanovic here and Jens Ohlin here), the end result of removing Judge Harhoff from office is certainly the correct one. That he thinks that he could continue working at the ICTY is beyond me.

Whatever happens now, one can be sure that this saga is not over and that the nightmare scenario I predicted will continue to unfold at the ICTY.