Category Archives: harhoff

What ever happened to the Seselj Case at the ICTY?

[UPDATE: This post was written a few hours prior to the order by Judge Agius actually appointing a new judge. more on the order here…]

As regular commentators of international law, we usually rush to comment on what the tribunals say and do. But we rarely comment on what they don’t do. I think it’s fitting, around the date that the Judgment (or Jugdgement) in the Seselj case was meant to be delivered to ask a simple question: what is happening ?

Readers might recall that following a private email circulated to friends earlier this year, Judge Harhoff from Danemark was disqualified from the Seselj case at the end of August, with the motion for reconsideration rejected at the beginning of October. You can read about most episodes of how this started here and here, and on the consequences of the disqualification here, here and here.

Since then, nothing has happened. Now that the disqualification has been confirmed, I suppose that the order issued at the beginning of September by ICTY VP Agius applies. According to that order, we should have consultations between the judges and Seselj on whether to rehear the case or continue the proceedings, before a possible assignment of a new judge, irrespective of Seselj’s consent. I already commented on the fact that this order is scandalous because it takes putting an end to the proceedings off the table and makes a complete joke of Seselj’s opinion on the issue.

This being said, I’m wondering what is taking so long. Already, I don’t understand how it took so long to issue the rejection of the reconsideration request. Moreover, I can’t see imagine that it would be so time consuming to consult with Seselj and decide to proceed (or not) in order for a new judge to be appointed. Especially as, from the tone of his communications at the time, it appears that Judge Antonetti is quite keen on moving forward. And it can’t be that there would be disagreement between him and Judge Lattanzi, the other remaining judge on the Chamber, because their request for clarification seemed to indicate that they were on the same page.

Given this state of affairs, there are 3 possible explanations for this delay :

1) Things are really this slow at the ICTY, so I really shouldn’t be making a fuss. Could be depressingly true.

2) There is a policy discussion going on at the higher levels of governance at the tribunal with a possible dissagreement between the Chamber and the Presidency for example on whether to continue the trial. Given the current acrimony between judges at the Court, this would not necessarily be surprising.

3) Everybody agrees to go ahead with the proceedings, but they cannot find a judge to replace Harhoff. If this is the case, I would perfectly understand that no judge would want to get entangled in this nightmare situation, 10 years down the road, with arguably very little time to get familiarized with the file.

Of course, you could tell me that I should be happy that there is such a delay which might mean that things are not running smoothly in the aftermath of the disqualification. Indeed, “if not running smoothly” means that there will be bumps on the road to the scandalous result of continuing the proceedings and issuing the Judgment, then that is a good thing I suppose…

If readers have any thoughts (or knowledge) of what is actually going on inside the black box of the ICTY, please don’t hesitate to share them in the comments section.

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.

Harhoff disqualification: no impact on the Seselj Case? Possibly…

I suggested in my previous post that the disqualification of Judge Harhoff from the Seselj case could mean that the trial would have to start over from scratch, or be terminated because a retrial would violate Seselj’s rights.

The decision to disqualify says nothing on this point, and my analysis was based on what I thought was a common sense assessment of the situation, but it does not seem to be borne out by the legal provisions on this issue.

Indeed, Rule 15 of the Rules of Procedure and Evidence provides that:

A Judge may not sit on a trial or appeal in any case in which the Judge has a  personal interest or concerning which the Judge has or has had any association  which might affect his or her impartiality. The Judge shall in any such  circumstance withdraw, and the President shall assign another Judge to the case. 

The last sentence would seem to indicate that a new judge can be assigned, and that things could therefore proceed as planned. I could not find any example of disqualifications at the ICTY (I’m happy for readers to direct me to such cases), nor do I find any help in the ICC legal framework on this matter, so for all intent and purposes, Rule 15 is all I have to go by, and I don’t particularly like it.

First of all, a couple of months before the issuance of the judgement, I don’t see how a new judge could familiarize himself sufficiently with the case to provide informed opinions on the evidence and the applicable law. If anything, this would most certainly push back the judgement to far ahead in the future so that any findings made in deliberations be revisited with the new judge.

Second of all, Harhoff’s lack of impartiality (UPDATE: changed from ‘bias’) should not just seen in relation to the formal issuance of the judgement on guilt or innocence. It possibly pervaded every step of the proceedings since the beginning, be it in various kinds of decisions, or the way witnesses were asked questions, for example. I don’t see how one can consider that the whole process is not tainted. If we were a couple of weeks into the trial, then a case could be made that the bias did not affect the fairness of the proceedings, but so close to the end? I don’t find this convincing.

In addition, if that is indeed the solution, then I don’t see the point of having the reserve judge procedure (Rule 15ter ICTY RPE). Isn’t that to avoid that a trial start from scratch should something happen to one of the judges? Surely, if one could judge appoint a new judge and continue without interruption, then the reserve judge would never be necessary.

All in all, I would therefore be quite dissatisfied should there be no consequences on the actual proceedings of this disqualification. Should the trial chamber proceed in this fashion, it would add a mockery of justice to a mockery of justice.

A Visual Summary of my Thoughts on the Continued Harhoff/Meron "scandal"

This is arguably my shortest blog post ever, but, in addition to my more lenghty thoughts on the subject (here and here), I wanted to share my feeling about a lot of what has been written, and continues to be written on the Harhoff storm in a teacup.

H/T to Jens for mentioning the existence of this cartoon and to Thomas for sending it to me.