H/T to Jens for mentioning the existence of this cartoon and to Thomas for sending it to me.
Posted in harhoff, icty, rights of the defence
The letter by Judge Harhoff alledging that the President of the ICTY, Judge Meron, was acting on orders from the US in recent aquittals, or at least adopting legal positions to support US positions, has received some commentary since it was made public yesterday, from blogs such as this one and EJIL Talk!, but also in the New York Times, where an article reveals that a number of officials and judges at that ICTY share Judge Harhoff’s skepticism and doubts about Judge Meron, to the point where another candidate has come forward to oppose the re-election of the latter at the Presidency. If these claims by the NY Times article are true, it seems that, if anything, Judge Harhoff has opened the floodgates of violating confidential information at the ICTY. Again, I don’t know if this is a good or bad thing, but it finally gives outside observers something concrete to work with.
But, in relation to the substance, none of the comments I’ve read so far actually bring me any closer to knowing what went on. I’m seeing language typical of conspiracy theories: “hopefully we’ll get evidence, and if there is no evidence, that means that someone is hiding things from us”. It’s a win-win situation for the conspirationists, because evidence either way can be construed as evidence of the existence of the conspiration. Also typical, is that there is a subtle shift of the burden of proof, as if those who don’t buy into the conspiracy have to bring elements to disprove it. That’s not how things should work. How do you prove that a spaceship did not land somewhere in the desert in the 1960s, leading to unhealthy experiments on alien beings?
In light of this, the only reasonable thing to do would be to just stop speculating until something concrete, other than a mere moral bias on the part of the critics (often relying on a somewhat simplistic, if not plainly wrong, analysis of the preceding case law), is revealed.
This being said, and because the temptation is just too big not to continue to debate pointlessly about this issue, I want to just share three thoughts that came up from reading the NY Times article.
First of all, there is the idea that there is a shift towards more deference to the military in the interpretation of the law in recent decisions. That might be true, but I would say that the anomaly was the previous shift away from that. For many years now, Human Rights activists have managed to convince way too many people that International Humanitarian Law was merely a wartime branch of human rights law aimed only at protecting civilians, to the exclusion of any other consideration. But that was never true. IHL has always been a balance between the protection of non-combattants and military necessity. Forgetting the second branch of the balance has led to what Darryl Robinson has perfectly and brilliantly described as the identity crisis of international criminal law. In my view, it is therefore those who orchestrated that shift that had a political agenda, rather than those who would be returning this law to the traditional balance at the heart of IHL.
Second of all, there is this double idea that things didn’t go well in Simatovic, because Judge Picard was not given enough time to write her dissent and because Orie was alledgedly also under influence. These are two different things. The first one is testimony, if true, of the fact that the ICTY has been under pressure, notably from the Security Council, for some years now to wind down its activities through the implementation of a rigorous completion strategy. And commentators have not generally been complaining about that. On the contrary, the ICTY has been regularly faulted for taking way too long to go through the trial process and the judgment drafting. It might be unfair that some judges today have to speed things up because previous generations of their colleagues were moving along at a leasurely pace, but I don’t see the link with the issue at hand. As for Judge Orie, it should be pointed out that he appended to the Simatovic Judgment a rather surprising separate opinion that responds directly to Judge Picard’s dissent and defends the majority judgment. I find this practice a little puzzling, but, beyond that, if Judge Orie was really under external pressure, why would he do that? It is one thing to give in to the pressure in the majority judgment, it is another entirely to go out on a limb to actually write a separate opinion with his sole name on it to defend the majority. This seems to indicate that, whatever one thinks of the majority Judgement, Judge Orie sincerely believes in it.
Finally, I am once again appalled at the narrative being constructed at the moment of the ICTY being a lenient court letting “murderers” get away. That is simply not true. On a long term perspective, the ICTY case law has developed principles that cast the net very wide, rather than very narrowly, through, for example, Joint Criminal Entreprise, command responsibility, or the adoption of rules of evidence that would make any national criminal lawyer laugh and cringe at the same time. Even in the short term, nobody seems to recall that just a few weeks ago, the ICTY found 6 defendants guilty in the Prlic case, with a strong dissent from the Presiding Judge on the lack of evidence of a Joint Criminal Entreprise. Why is nobody talking about that?
At the end of the day, if we strip away the argumentative niceties and the unsubstantiated conspiracy theories, there remains a rather mundane, but fundamental dimension on international criminal justice: its bias towards convictions and the blatant disrespect for the rights of the defense and the principle of legality. When I hear certain people talk about international criminal justice, I sometimes wonder why they bother advocating for international criminal courts at all, when they seem intimately convinced that all defendants that will appear before them are necessarily guilty. I would have more respect for these activists if they stopped pretending to have a liberal agenda and clearly stated that we should dispense with the whole masquerade that are international trials to directly go to the sentencing phase, where the bad guys will finally get what they deserve.
Posted in harhoff, icty, meron, perisic, rights of the defence
The news has spread since this morning like a virus. A Danish newspaper has revealed the existence of a letter sent to a list of 56 (!) friends by Judge Harhoff, a siting judge at the ICTY, claiming that the recent acquittals at the ICTY (Gotovina, Perisic, Stanicic and Simatovic) are the result of political pressure exerciced by the US and Israel on the American President of the Tribunal, Judge Meron, who in turn alledgedly influenced his fellow judges to increase the threshold of complicity so as to make convictions more difficult.
This letter is obviously incredible and brings up some thoughts on a number of levels.
First of all, if Judge Harhoff thought that this “confidential” message sent to a select number of his friends would not be made public, it shows a certain naivety. Moreover, one can question the propriety of such a letter. It seems to reveal internal information to the tribunal, in terms of the relationship between the judges that are most likely not meant to be made public.
UPDATE 1: Over at EJIL Talk!, Marko Milanovic thinks that this is the “worst scandal to engulf the ICTY in its history”. I’m really not that sure that it will be and if it really does turn out to be, I think it means that people seriously have their priorities wrong in what they should be focusing on in the work and output of the ICTY.
UPDATE 2: This recent blogpost over at Balkan Insight sheds some light on the fact that if there is a conspiracy theory, the case needs to be made in a far more convincing way given, among other things, the past use of the “specific direction” test in the case law. Ivanisevic argues rather convincingly that what has changed is not the political policy, but rather the fact pattern.
Posted in harhoff, icty, meron, rights of the defence
Judge Moloto: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or commander of the assisting army is guilty of aiding and abetting those crimes?
Mr. Harmon: Your Honour, General Perišić provided assistance knowing that that assistance was going to assist the VRS [Bosnian Serbs] and it was likely that that assistance would be used in the commission of crimes.
Judge Moloto: Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged to have been committed, and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places?
Mr. Harmon: Your Honour, you are asking me obviously, an explosive political question.
Judge Moloto: No, no. It’s a legal question.
Mr. Harmon: I would like to answer your question. The objectives, as I understand, of the NATO forces isn’t to ethnically cleanse parts of Afghanistan. It is to be engaged in a military campaign against the Taliban. It is —
Judge Moloto: Mr. Perišić is not charged with ethnic[] cleansing. He is charged with murders. That’s why I’m making the distinction between the actual crimes that are charged in the indictment. […]
[snip]
Judge Moloto: […] [M]y question still stands, […] – what is the authority for that proposition and I’m saying can you comment on the – on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.
Mr. Harmon: I draw the distinction as I say, as follows, Your Honour, the first situation is it’s a war, it’s a war in Bosnia and it was a war in and it is an on-going war in Afghanistan. Where I make my distinction is the purpose in objectives. The objectives of Bosnian Serbs, in part of strategic objective number 1, was to ethnically cleanse, if you will, that is a much broader term, it was to separate the Serbs from the non-Serbs. That act gave rise to conduct, long-standing conduct that lasted throughout the war of the VRS taking populations of Muslims and Croats and removing them from their homes by force. That was no mystery. General Perišić was aware, as we say in our brief, was fully aware of the conduct of the Bosnian Serbs, and with the knowledge of that conduct he provided them with assistance that enabled them to continue to conduct the war, continue to commit crimes, and that assistance that he provided had a substantial effect on the commission of those crimes. So I make a distinction between the Afghan war, where there is not the stated purpose which is to remove and ethnically cleanse. I also make one other observation about the Afghan war. In the Afghan war, and I’ll take the United States as an example, because I’m familiar with the United States’ participation in part in that. When there were crimes that were committed by American soldiers, those crimes were prosecuted in the United States and people are serving life prison sentences as a result of those crimes committed against Afghan civilians. In this situation, there were no prosecutions whatsoever, either in the VRS or in the Federal Republic of the Yugoslavia for war crimes.
[snip]
Judge Moloto: You see, unfortunately, we don’t seem to be on the same wavelength. […] [T]he point I’m asking simply is because the armies, the commanders of the remaining NATO countries that are participating in Afghanistan are aware of the fact that crimes have been committed, crimes against humanity have been committed, and yet those commanders are still continuing to participate in that war, are they then guilty of those crimes that are being committed? That’s just – you either say they are not guilty or they are guilty. If anybody is guilty of those crimes, then they are equally guilty with those people of those crimes, because they are aware of those crimes being committed and yet they are continuing to participate in that war.
Mr. Harmon: I draw a distinction, Your Honours, between continuing to participate in the war. The position we assert here is identical to the situation in your hypothetical situation.
[snip]
Judge Moloto: And, therefore, if it is identical, then you are saying, yes, they ought to be guilty if anybody else is guilty.
Mr. Harmon: Your Honour, I don’t want to go that far. I’m saying that the situation is identical in terms of the framework of our case.
Judge Moloto: I won’t force you to go any further than that.
I have been offline for a while now, too busy in the “real world” to blog on some of the issues that came up in recent months.
However, I couldn’t really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP’s overview of its own motion:
1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment […]
2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice.
3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.
Several brief thoughts :
1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):
Radovan KARADZIC and, as of 12 May 1992, Ratko MLADIC, were key members of an overarching joint criminal enterprise which lasted from at least October 1991 until 30 November 1995. Their objective was the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory in BiH through crimes charged in this indictment.
The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor “not part of” and “not a foreseeable consequence of”) to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event… or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated… I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: “either there was a general bid to exterminate or there was not” and severing the two seems extremely artificial.
2) I won’t really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability…). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.
3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor’s immediate recourse to “inherent powers doctrine” shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don’t like the use of this shaky doctrine by international criminal tribunals, but let’s play along for the sake of argument.
The real issue is timing. I find that this motion shows the chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let’s look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i’m-reading-ALL-the-charges show from Judge Orie) and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the “interests of justice”. And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same “interests of justice”? Whatever the practical merits of that solution, I find the Prosecutor’s conduct quite careless, especially in light of the ICTY’s attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.
4) On a final and related note, I’m still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I’m wrong). As I’ve said elsewhere, these this is essentially the same case, from a narrative point of view. If the “interests of justice” are so important, then I believe both cases should indeed be joined.
Spreading the Jam 