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
The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won’t delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.
I also won’t go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin’s evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I’m wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.
Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.
Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What’s important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.
But the main point I want to focus on is whether this is really a referral of a “situation” as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a “situation”, because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I’m not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court…). I’m still not convinced for the following reasons.
To start out, it is interesting to note that, reading the referral, the scope of the “situation” that is referred is subject to interpretation. The Mavi Marmara is mentioned a number of times in the document, but the actual referral seems to be broader and cover “IDF’s attach on the humanitarian aid flotilla on the 31st of May 2010”. This ambiguity is reflected in the OTP Press release with only mentions the Mavi Marmara in the title of the release, while using the broader scope in the text of the release.
I think both interpretations raise different questions that I’m struggling with.
If the situation referred is the attack on the Mavi Marmara, I can’t shrug the feeling that this is stretching the notion of “situation” a little too far. Of course, a “situation” needn’t be the whole territory of a State (as illustrated by the Uganda and Sudan referrals). However, I’m wondering if narrowing down a referral to a single event doesn’t make a joke out of the whole idea of what a “situation” is (as well as of prosecutorial discretion in the selection of cases). Would we really call, for example, the “referral” of the destruction of the bridge of Mostar or the Sarajevo snipping, “situations”? Or to take an ICC example, what would we have said if only the attack on the AU peacekeepers, for which Abu Garda was charged, had been referred by the Security Council?
Moreover, the thin line between “situation” and “case” becomes a little blurred if this referral is accepted. Indeed, at the ICC, a case is when, within a situation, a specific individual becomes the focus of investigations for specific crimes. For me, allowing only one incident to be referred under the label “situation”, would be like saying in a national context that investigation into a murder is a “situation”… until a suspect is identified and it becomes a “case”. This would be a ridiculous semantic distinction. In other words, I think that we are here very close to a “case” being referred to the ICC. This feeling is obviously strenghtened by the fact that the perpetrators are already know and pointed to in the referral, at least collectively, as the IDF.
Let me be clear, I’m not saying that this referral does not fit the ICC definition as it currently stands and as put forward by Dapo and Kevin (given that it is extremely vague both in the Statute and the case law…), but should this be considered as a “situation”, thus allowing the ICC to take on specific incidents, rather than broader “situations” (for lack of a better word…), I think this could change the logic of ICC intervention in ways that would not be necessarily welcome.
If, on the other hand, the “situation” is the attack on all the boats, notably the two other ships flying flags of State Parties (Greece and Cambodia), then a different question arises. The issue can become whether the referral is too broad rather than too narrow. Indeed, the referral covers crimes committed not on the territory of one State Party, but on the territory of several State Parties. Again, nothing in the Statute seems to prevent that, but I’m wondering if this is really what the drafters intended, because it could lead to the consequence of actually de-territorializing.
Indeed, what the Comoros are essentially saying, is that the key element is the attack and its perpretrators, irrespective of the territory it was committed on (aside from the jurisdictional requirements of course). This means that tomorrow, a State could refer the crimes committed by a global terrorist organization, anywhere on the territory of a State Party. Would that fit our instinctive notion of a “situation”? If it doesn’t, we must be cautious at accepting a referral which does the same here: the attack of the IDF on the flotilla, irrespective of the territory it was committed on. I know it seems difficult to compare the two situations, because we are just talking about boats here, not entire countries, but legally, it’s the same difference.
All in all, I think that the fact that this is a “situation” under the Rome Statute is not as clear-cut as we would like to think. And if it turns out to be, I think it sets a precedent that can have far-reaching consequences that we should be aware of and that might affect the way the ICC operates in ways that go further than the specific political context in which this referral comes.
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.
Spreading the Jam 