There are new developments in the Harhoff disqualification situation. As others have reported, multiple parties have filed requests for clarification or reconsideration, including the Office of the Prosecutor, the other judges on Harhoff's trial chamber panel, and even Harhoff himself. Clearly the situation is not over.
In this post, I want to consider some additional issues that I didn't discuss in my first post.
First, what was the meaning of Harhoff's reference in his letter to a personal or professional dilemma caused by the recent tribunal decisions that troubled him? The two judges on the disqualification panel who voted in favor of disqualification interpreted the phrase to mean that he would have trouble following the established tribunal jurisprudence as indicated by the Appeals Chamber. In other words, Harhoff was having a moral dilemma because he was considering ignoring the law. This strikes me as an unlikely interpretation of the statement. It is more likely that Harhoff was considering either resigning his position, because he could no longer support an organization or institution whose law was becoming badly distorted, or he was considering making some other form of public statement of protest (such as the very letter he wrote) or a law review article. Speaking out has consequences (as he learned) and that itself could be the source of the dilemma to which he refers.
Second, even if the statement were, hypothetically, to refer to a problem with applying this specific area of the law, would this be grounds of disqualification? Certainly, there is no issue here with regard to the recent trial chamber decision in Stanisic and Simatovic, since there is no way that one Trial Chamber decision could be considered binding precedent on another trial chamber judge. So let's consider the Appeals Chamber decisions in Perisic, for example. The ICTY claims not to apply stare decisis, so previous decisions are, as a technical matter, always subject to revision. That being said, Appeals Chamber decisions are binding precedent for lower Trial Chamber decisions, and a Trial Chamber judge should follow Appeals Chamber statements regarding the law.
But what should a Trial Chamber judge do if he thinks a set of rules are wrongly decided? Isn't the only option to forge a new path and issue a contrary ruling, thus making a statement that if the Appeals Chamber is going to insist on its current path, it will need to reverse the decision. Isn't this exactly what happened in the Stakic Trial Chamber? Specifically, in Stakic the Trial Chamber refused to apply JCE, which at that point was clearly the law of the tribunal; the Trial Chamber noted that JCE was highly controversial and not explicitly referenced in the ICTY Statute. Consequently, the Stakic Trial Chamber decided to apply co-perpetration based on Roxin's Control Theory. On appeal, the Appeals issued a rather terse opinion rejecting this approach. What was interesting was the reasoning of the Appeals Chamber. It did not bother to justify the JCE approach, but rather simply reasserted that JCE was the settled approach of the tribunal and that the Trial Chamber's refusal to apply JCE was inconsistent with the settled approach. Get with the program, they said basically.
Now here's the issue. If you think that Harhoff should be disqualified for bias, do you also think that the entire Stakic Trial Chamber majority (Schomburg, Vassylenko, Argibay) should have been disqualified from future cases for its refusal to apply JCE? But no one suggested this at that time (or at least I've never heard it said before). So this seems inconsistent. And the Stakic case is a situation where the Trial Chamber actually disagreed with settled Appeals Chamber rulings, rather than simply imply in a vague way that they might do so in the future (which is supposedly what Harhoff did). So it seems that the argument for disqualification should apply in greater force for all of the Stakic Trial Chamber majority judges than it does for Harhoff.
If this is the standard, then Trial Chamber judges are never going to be able to disagree with Appeals Court rulings and push the law forward in new directions. Incidentally, although the Stakic Trial Chamber approach was never followed at the ICTY (after it was rejected by the Appeals Chamber), it became an important legal precedent for the adoption of the Control Theory at the ICC, thus resulting in a substantial development in the law.