Category Archives: rights of the defence

Some Thoughts on The bombshell Letter by Judge Harhoff at the ICTY

[The follow up of this blogpost is here]

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.

  • On the actual existence of the letter

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.

This being said, the letter is obviously a useful tool for outside observers who rarely have access to publicly available information on the international dynamics within the tribunals, more specifically on the relationship between judges. In that sense, while probably formally improper, the letter is a welcome addition to anyone trying to understand how international criminal justice actually works, beyond the legal discussions on its output.

  • The content of the letter
I will not delve into the actual substance of the debate on the “specific direction” test that is at the heart of the current controversy. Manuel Ventura published his take on this earlier this year on this blog, and the debate has been sparked up over at Opinio Juris, with recent posts by Kevin John Heller and James Stewart. I think it’s ultimately a normative choice, with both sides having legitimate points to make.
I do however think that we need to distinguish the several dimensions of the allegations. 
The first one seems to be that some major powers have been putting pressure on Meron to interpret the law in such a way that some conduct not be regarded as complicity. I must admit that, probably naively, I don’t quite buy it. The case law of these tribunals has, over the past 20 years, adopted a number of expansive interpretations of ICL to expand criminal liability of commanders, whether through the removal of causation in command responsibility or of course the creation of Joint Criminal Entreprise. This case law never bothered anyone at the state department, despite the impact that it could theoretically have on the criminal responsibility of commanders. But of course, if there is any evidence of “specific direction” (pun intended) from some countries to their judges to apply the law in a certain way, this would be contrary to the rule of independence and impartiality of the judges and would arguably warrant sanctions.
A second, somewhat different angle, is that of Judge Meron trying himself to change the judicial policy of the tribunal on those matters. If that is what happened, I don’t see the problem, to put it bluntly. How is this any different than Cassese influencing the judicial policy of the tribunal with Joint Criminal Entreprise? Both have a normative agenda, and I refuse to take sides, on principle, between competing normative agendas, because one of them would be labelled as “moral” (i.e, good) while the other would be labelled as “political” (i.e, bad). The reason nobody was complaining at the time is of course that it is ok to stretch the law and the principle of legality and to have a normative agenda if the result is to put the bad guys behind bars. It suddenly becomes shameful when the result is acquittals. [CLARIFICATION: I’m not saying that I believe that Meron has a political agenda. I’m saying that even if he does have one, I don’t necessarily see the problem. As others have argued (see UPDATE 2 below), the “specific direction” test predates by many years the current cases and it is not at all evident that Meron does in fact have a political agenda].
A third dimension is the alleged influence of Meron on other judges. This for me is the most hypocritical argument made in the letter. Of course judges influence other judges. That is the nature of deliberations and the reality of the tribunals. The history of ICTY benches is a history of some extremely competent people, but also a history of judges with serious deficiencies in character and in competence on issues of international law and international criminal law. Who could seriously claim that Antonio Cassese did not put “pressure” on some of his fellow judges to obtain certain things in judgments? Who could seriously claim more generally that deliberations are perfect egalitarian foras where the perfect legal truth emerges form pure argumentation? All deliberative bodies are the scene of power struggles, personal animosities and friendships which necessarily influence approaches to the substance of issues discussed, back-door compromises and negotiations. I don’t see why ICTY Chambers would be any different. Once again, I did not hear Harhoff complain in the past of the possible intellectual influence of some judges over others.

  • the impact of the letter
It is difficult at this point to gauge the possible impact of this letter, other than getting the little world of ICL commentators excited. In relation to Perisic and Gotovina, I wonder if there is any room for the Prosecutor to request a reconsideration of the Appeals Judgments in light of the allegations by Judge Harhoff. My sense is that, absent specific evidence of lack of impartiality on the part of Meron, this would be bound to fail. Also, it is possible that the Prosecutor will bring these issues up in the Simatovic appeal, maybe to ask for the removal of Judge Meron (and Gunay?) but again without concrete evidence, I don’t see this going very far.
What about the impact on the outside world? Some might think that the legitimacy of the tribunal would be affected by such allegations. I really don’t think so. First of all, the internal workings of the tribunal are, let’s be honest, of interest to only a limited number of Hague nerdish commentators. Second of all, those who already think that the tribunal is illegitimate, will only think that their fears are confirmed. The affected communities never had much faith in the institution in the first place, and I don’t see these new accusations as changing anything. The only community that might be concerned is the community of human rights activists, who, as Judge Harhoff, frown upon anything that might stand in the way of “ending impunity”, be it politics, the rights of the defense or the principle of legality. 
Finally, what could be the consequences for Judge Harhoff himself? I can’t see this being pushed under the rug. He is currently sitting on the difficult Sesejl case, but it is difficult to know if there is any link with the current debate until the judgment is issued. On a general level, there doesn’t seem to be much respect on the part of the judge for the presumption of innocence, as he seems to have preconceived ideas about who should be found guilty or not. More generally, Judge Harhoff has explicitly singled out some of his colleagues and I can’t see how this can make his work at the ICTY possible. A French politician some years ago said that a government minister should either shut up or get out if he disagrees with his government. I’m wondering if this should not apply to Judge Harhoff as a natural consequence of his doubts, whatever one thinks of them.

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.

Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.

His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I’m not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.

One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn’t work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which  I personally find disturbing, as I’ve already argued, but that’s a different issue). Interestingly, the Appellate procedure does not suspend the sentence.

With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I’ve seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.

Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.

Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn’t fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I’ve had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don’t see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That’s just how the system works.
Of course, at this stage, this is just speculation, as I can’t seem to get hold of the alleged 2008 decision or its content. If anybody has it, I’d be happy to read it.

Bring your Appeal to School Week: International Justice marches on for Lubanga, Bemba and Sljivancanin

Early December has been quite busy in the Hague international tribunals. The Karadzic flying circus has gotten all the attention in recent weeks, but other decisions require at least being mentionned.

At the ICC, on 2 December, the Appeals Chamber reversed the decision on the interim release of Jean-Pierre Bemba issued last August and where a single judge had decided that changed circumstances allowed for such a release. In its Judgment, the Appeals Chamber found that the pre-trial chamber had misapplied the conditions under which a person could be considered for interim release. We won’t go into the details of the reversal, which is in line with the case-law of the ICC up to now, namely, that it is extremely unlikely that any defendant will ever be granted interim release, given the conditions imposed and that the Court, although pretending to apply Human Rights standards, has in effect reversed the principle of liberty and imposes incarceration as a rule.
More specifically, by taking into account the gravity of the crime and possible sentence, a condition which is not contained in article 58, the Appeals Chamber tips the balance in favour of detention. Indeed, All crimes are “grave”. That is the whole point of the ICC in the first place. But the day-to-day application of the Statute leads to the fact that we have to accept a hierarchy of gravity between the crimes if the use of gravity within the Statute is to have any sense. Generally, gravity is a continuing thorn is the side of the Judges at the ICC. This is obvious in the interim release decisions, but also in the admissibility case-law where pre-trial, trial and appeal chamber have in effect given up on putting into effect article 17.1)d) of the Statute and left a total discretion to the prosecutor on the evaluation of gravity.

Still at the ICC, the Appeals Chamber yesterday, the 8 December, reversed the Trial Chamber decision on the legal recharacterisation of facts, on which I had commented on in a previous post. The Trial Chamber had decided to use Regulation 55(2) of the Regulations of the Court to pronounce of the possible change in the legal characterisation of the facts in order to include charges of sexual violence in the indictment. The Appeals Judgment is fairly uncontroversial, in the sense that it reverses a criticised decision, but its reasoning is not beyond reproach.
It first finds that Regulation 55 is not in principle incompatible with the Statute of the Court, especially with Article 61(9) on the modification of the charges after the confirmation of charges, or with general principles of international law.
The Appeals Chamber however considers that the Trial Chamber misinterpreted the Regulation because it cannot be read as allowing the Trial Chamber to take into account in its decision facts and circumstances not contained in the charges, as prescribed in article 74(2) of the Statute. Moreover, according to the Appeals Chamber, the addition of new facts and circumstances can only be done in accordance with article 61(9), which gives the prosecutor power to do so. In the words of the Appeals Chamber:

The Trial Chamber’s interpretation of Regulation 55 would circumvent article 61 (9) of the Statute and would blur the distinction between the two provisions. As the Prosecutor notes, the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial. The Appeals Chamber observes that it is the Prosecutor who, pursuant to article 54 (1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to article 61 (1) and (3) of the Statute, proffers charges against suspects. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.

In deciding that Regulation 55 is not incompatible with article 61(9), but by interpreting article 61(9) as it does, the Appeals Chambers is threading a tight interpetrative rope. Indeed, 1) the article only mentions new charges, not new facts and circumstances and 2) the distinction between the two is difficult in practice. Indeed, what would be the point of a recharacterisation if it didn’t affect the charges? Even if trial judges were to recharacterise facts already contained in the charges, it would probably affect the charges themselves, for example by affecting the criminal liability, from direct responsibility to command responsibility. In effect, I do think there is some tension between the two provisions.
Which brings us back to the broader overarching problem of the interaction of civil law and common law in the founding documents. As I pointed out in my earlier post, Article 61(9) is a common law approach, giving discretion to the Prosecutor, whereas Regulation 55 is civil law inspired by giving more power to the judges. Despite the wishful thinking of many, I don’t believe that the two approaches are compatible when drafted this way on a case-by-case basis with no clear and explicit relationship between the two.
Finally, a short comment on prosecutorial strategy. This is not discussed in the Appeal, but the Trial Chamber decision was a clear result of the Prosecutor wanting to have his cake and eat it. Indeed, a lot of attention has been devoted to the role of victims in that decision or the tendencies of the Judges, but the Prosecutor is also partly to blame. He chose to prosecute “only” the enlisting of child soldiers, but all through the trial, as early as his opening statement, he insisted on the conditions under which these children operated, especially in relation to sexual abuse. Despite it not being directly relevant, this was obviously done to give some extra gravitas  to the proceedings and the strategy nearly backfired. Maybe the Prosecutor will show more caution in the future.

Finally, on the same date, 8 December, the Appeals Chamber of the ICTY dismissed the motion filed on behalf of Sljivancanin for the Judgment rendered by the Appeals Chamber. In that Judgment, the Appeals Chamber had reversed the finding of acquittal against the Defendant on one of the counts and consequently imposed a sentence in relation to the finding of guilt. Judge Pocar dissented, considering that once the error of the Trial Chamber identified, the case should have been remitted the case to the Trial Chamber for a re-evaluation of the facts in light of the correct application of the law.
The main issue, as argued carefully in the motion, was whether the reversal of the finding of acquittal by the Appeals Chamber and subsequent sentencing, violated the right of Appeal of the Defendant as recognised in Article 14(5) of the ICCPR. The Appeals Chamber, in a short and undocumented decision declines to even consider the motion, considering that “the Appeals Chamber has no power to reconsider its final Judgments”.
You can read the motion if you want more details on the reasoning of the Defendant’s counsel, but generally I find the decision puzzling. Let’s not insist on the whole idea that an acquittal can be appealed by the prosecutor in the first place. I would tend to agree that this should be barred, as in the US constitution, if only because the State (or institution) has unlimited means to get things right the first time, as opposed to the Defence, but apparently, the practice at the ad hoc tribunals is different. What is specifically puzzling here is that, on the face of it, it does appear like a clear violation of the right of Appeal as protected by Human Rights Standards. The Appeals Chamber clearly embarks on a very specific factual analysis of the evidence which is more of a First Instance role than an Appelate role, and apparently didn’t recall witnesses or allow “adversarial” discussion. As pointed out by Pocar in his dissent:

The Appeals Chamber enters a conviction based on the trial record without having observed the witness testimony or the presentation of evidence, factors which may be particularly important in assessing witness credibility. In so doing, the Appeals Chamber enters, for the first time in this case, findings on matters which are primarily within the responsibility of the Trial Chamber, such as finding on issues of fact that are crucial to a verdict of guilt. Such findings are now destined to remain unchallenged, in clear violation of Sljivancanin’s right to appeal against convictions.

I don’t see how it would not be in the interests of justice for the Appeals Chamber (with the exact same composition as in the impugned Judgment… hum…) to pronounce on the motion, especially when out of the 5 appelate judges, one (Pocar) wanted to send the case back to the Trial Chamber and another (Vaz) actually concurred with the finding of acquittal at the trial level.

All in all, a good week for commentators where international justice marches on, irrespective of the rights of Defence (Bemba, Sljivancanin) and setting aside the requirements of consistency in the intepretation of criminal statutes (Lubanga)…