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.

Second of all, I’m happy to be able to be of help to Judge Antonetti on this blog: I know the culprit. I know who tried to destabilize the tribunal and smear Judge Meron’s reputation through publicizing these comments. It was Judge Harhoff. He did not write this letter to his wife and close childhood friend. He wrote this letter to over 50 people. I might be a sociopath, but I cannot think of 5 people I would trust with such comments, let alone 50. Trying to move the spotlight away from Judge Harhoff’s own responsibility in this matter will just not work.

The decision even suggests that contempt proceedings could be initiated against the person who leaked the letter! Which is thoroughly ridiculous in my opinion. Already, the contempt procedure at the tribunal is subject to criticism on a number of levels, if it were to be used on such an issue, then it would be simply a mockery. If any legal action should be taken in relation to the letter, it could be by Judge Meron for defamation…

The other quite extraordinary claim in the documents is that this whole disqualification process would be affecting Seselj’s rights, despite the fact that he filed the motion in the first place! Apparently, this argument also appeared his the Prosecution motion for reconsideration, as pointed out by Kevin Jon Heller on twitter yesterday:

The only basis for making this claim is that for Judge Antonetti, as for Judge Agius in the order on the follow up to the disqualification that I discussed in my previous post, the option of pronouncing a mistrial and freeing Seselj is just not on the table. This is for me the real threat to Seselj’s rights, not the disqualification of Judge Harhoff.

Ultimately, what Judge Antonetti is saying is that he trusts Judge Harhoff and doesn’t think that he is lacking in impartiality. In order to make that feeling known, Judge Antonetti refers to his impressions during deliberations, while saying that these are of course confidential. Which essentially means that this feeling is unsubstantiated for the outside world and has to be put in balance with the content of the letter, which is available to the outside world. The Panel decided that the letter was evidence of appearance of bias, irrespective of Judge Antonetti’s feelings, and that is the end of the matter.

What these documents show is that Judge Harhoff still has a lot of support at the tribunal, who are trying to save Private Harhoff. However, I think this only works in Spielberg movies and I would be very surprised, and thoroughly dissapointed, should the disqualification decision be reversed. The bottom line is that, whatever the means chosen, and I would arguably agree with those who say that the disqualification route was not necessarily the most convincing, the end result of removing Judge Harhoff from any activities at the tribunal is the correct one. The rest is just commentary.

7 responses to “Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theories

  1. Dear Dov,It seems that you think that the only way to solve the situation would be to quash the proceedings and release Seselj. I would be interested in knowing why exactly you think so. The proceedings have been long, but mostly due to Seselj's disruptive behaviour and contempt proceedings which necessarily had to interrupt the main case. On top of that, and as far as I know, during trial Seselj never requested to be set free, so there could hardly be a violation of his right not to be detained too long.Thanks!

  2. Dear Guy,Accepting the panel decision as standing for the sake of discussion, I indeed do think that it is the only acceptable outcome. Restarting the trial from the start would extend the process for too long. Issuing the judgment with a new judge would be unfair in my opinion, but might be the solution adopted, with a small delay for the new judge to familiarize with the case.In any case, whatever my opinion is, I think on principle that it is not normal that the option is not even considered…As for Seselj's own requests, I recall that there were some such motions. I found this information for example: http://jurist.org/paperchase/2011/10/icty-holds-seseljs-rights-to-fair-trial-not-violated.phpthere might be others.

  3. Dear all,the mere fact that Judge Agius as VP may think that a mistrial is not feasible is irrelevant in my view. I doubt he has the power to declare a mistrial, as he is not seised of the trial, but merely of the disqualification proceedings. If he really constitutes a new chamber by appointing a replacement (despite his expressed concerns about the fairness of such a move), that Chamber will have jurisdiction to declare a mistrial, not the VP. They are not bound by his views and may still do so. The idea of habeas corpus for abuse of process that seems to underlie the mistrial option would, however, appear to have been disavowed by the ICTY/R AC ever since Barayagwiza No. 2. But then Seselj has been in custody a trifle longer than the former. So they may yet have a change of heart.I have my doubts whether one really can say that Judge Harhoff is biased vis-à-vis him, as the majority said, the evidence can be regarded as somewhat tenuous. The real issue here is that Harhoff – in my view, having been a professional judge myself – acted in an unethical manner and violated the standards of proper judicial conduct as a sitting judge, no matter whether his allegations are true. The discussion might more profitably be about removing him from the bench altogether as a disciplinary measure – but then who would do that? The UNSC or GA? This shows the consequences of not having rules on judicial discipline, and as I previously argued (Bohlander, Michael (2007). The International Criminal Judiciary Problems of Judicial Selection, Independence and Ethics. In International Criminal Justice – A Critical Analysis of Institutions and Procedures. Bohlander, Michael London: Cameron May. 325-390) this matter was not unknown at the time of drafting the Statute. The way it looks to me, the fact that the disqualification means he has no more trial in which to participate and thus as an ad-litem judge has to leave the ICTY anyway may have been used as a hidden removal decision. In any event, Harhoff has rightly pointed out that he has a right to be heard in the process of disqualification and any absence in the majotiy decision of an express consideration of his statement and that of Antonetti leaves a sour taste.

  4. Dear Michael,Thank you for your comments. Just a few thoughts.I agree that the Chamber will not be bound by Agius not contemplating a mistrial. However, there has to be some consequence of applying Rule 15bis, which does not contemplate such a solution.I also agree that the real issue was the unethical behaviour of Harhoff and that pure and simple removal as an administrative sanction would have been preferable than this disqualification procedure.As for the "sour taste" left from not mentioning the report or the Harhoff memorandum, the panel should have maybe formally referred to them, but their actual content is nothing to write home about. The Antonetti report is useless. The Harhoff memorandum, made public today, is a little more convincing, but not that much and I don't think it changes anything.

  5. Dear Dov, Strange, in my opinion (as a legal professional) that a law professor pays so little attention to the suggested possibility that the disqualification panel has not seen Antonetti’s report and Harhoff’s memorandum.Wouldn’t that be a major due process issue?In your domestic legal system, I am quite sure that the mere fact that these documents, part of the file transferred to the panel by Judge Agius’s referral decision, were not mentioned in the panel’s disqualification decision, would lead the Hoge Raad to quash such a decision, without even being bothered by the question whether the panel judges had seen and taken into consideration those documents.Your easy going reply to Michael that “their actual content is nothing to write home about” is, forgive me the language, unworthy of a law professor.I sincerely hope that this somewhat harsh language will irritate you enough to react and give a more reasoned opinion on the fact that the panel judges did not refer at all to even the existence of the report and the memorandum which allows for the presumption that they did not see or looked at them.

  6. …..but mostly due to Seselj's disruptive behaviour …..Just read the transcripts of the first four years, how the judges dragged their feet, and then tell again, that mostly Seselj has been responsible http://www.icty.org/case/seselj/4#transBetter you read all.

  7. Pingback: What ever happened to the Seselj Case at the ICTY? | Spreading the Jam

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